KANAILAL GOSWAMI Vs. MAHESH PRASAD MAL

JUDGEMENT

(1.) This appeal is preferred by the Plaintiffs against a judgment and decree of the trial Court dismissing their suit.

(2.) The property in dispute is a small plot of land about 5 and a half or 6 cottahs on a portion of which the Respondents have a dwelling house. The Appellants' case, briefly, is that by a registered conveyance dated November 19, 1943, they purchased the above property along with other properties comprised in several C.S. plots under several khatians belonging to one Ganendra Mohan Bhaduri and Girindra Mohan Bhaduri of Serampore through the Receiver appointed in an insolvency proceeding against them, but this was subject to a condition that so long as debt due to a boarding named 'Rajendralal Free Boarding Trust' by the Bhaduris was not fully paid off, properties conveyed would remain in possession of the Receiver in a title execution case No. 60 of 1936. The Appellant No. 1 was appointed Receiver who in sale held in a rent execution case against the tenant auction -purchased properties along with the above properties with right to annual all encumbrances and the sale was confirmed on November 8, 1946. Thereafter, the Appellants served a notice upon the Respondents for annulment of encumbrances as they were found to be in possession of the property through Court. But in spite of receipt of such notice of annulment the Respondents failed to vacate and thus the Appellants were entitled to necessary declaration of their title and to get possession of the properties.

(3.) The suit was contested by the Respondents and apart from the general denial of material allegations, their specific case was that the sale held in execution case was not a rent sale at all and their interest being that of a permanent tenure and raiyat mukrari could not, in any event, be annulled. The land in dispute was a garden land and their predecessor Sm. Basumati Devi since her purchase of the disputed land on January 6, 1934, constructed a dwelling house thereon. Their interest was not an encumbrance but on the contrary a protected interest under the provisions of law and thus their interest could not be annulled.