ABDUL HAMID Vs. DHIRENDRA NATH ROY CHOUDHURY

JUDGEMENT

(1.) This appeal raises a pure question of law namely, whether the auction purchase of the right title and interest of the tenants of an occupancy raiyati holding by a stranger will prevail as against the auction purchase of the same holding at a subsequent date by the landlords of the holding against the recorded tenants.

(2.) In order to appreciate how the above question of law has arisen in this appeal it is necessary to state only the following facts. The settlement Khatian marked Ext. 4 in the trial court will show that one Baburali Tarafdar was recorded as a settled raiyat in respect of four plots of lands which are in dispute in this suit under one Priya Nath Roy Choudhury at a rental of Rs. 4 per year. After the filial publication of the record-of-rights, there was a partition between Priya Nath Roy Choudhury and his co-sharers and by that partition the disputed holding fell to the share of the Respondents of this appeal who were the Plaintiffs in the trial court. A copy of the partition decree which was filed in the trial court would show that the Plaintiffs-Respondents were to get the rent of the disputed holding from 1340 B.S. onwards and rents for prior periods were payable to Priya Nath Roy Choudhury. Priya Nath obtained a rent decree against the heirs of Baburali and after the death of Priya Nath his son Ashutosh Roy Choudhury auction purchased the right, title and interest of the heirs of Baburali on December 20.1938. It is not disputed that thereafter Ashutosh took delivery of possession of the disputed lands and settled them under raiyati right with Abdul Hamid, the sole Defendant of the trial court and the Appellant in this appeal. It appears that after Ashutosh had auction purchased the interest of Baburali's heirs, the Respondents of this appeal brought a rent suit against the heirs of Baburali and obtained a decree and in execution of that decree they auction purchased the suit lands in August, 1942 and the sale was confirmed in September, 1942. The Respondents also took delivery of possession of the disputed lands in February, 1943. It is their case that they have been dispossessed from the disputed lands by the Appellant who is the lessee of Ashutosh Roy Choudhury.

(3.) The present suit for declaration of title and for recovery of khas possession of the disputed lands was instituted by the Plaintiffs-Respondents on September 1, 1948. The basis of their title was of course their auction purchase. The Defendant resisted the claim of the Plaintiffs contending that the prior auction purchase by Asutosh Roy Choudhury, the lessor of the Defendant, should prevail over the auction purchase of the Plaintiffs. The objection of the Defendant was overruled not only by the trial court but also in appeal by the lower appellate court and so he has come up in Second Appeal.