NRISINGHA PROSAD BOSE Vs. NIL RATAN SINGHA ROY

JUDGEMENT

(1.) These appeals are at the instance of the contesting defendants. The facts are not in controversy and may be stated as follows :

(2.) There was an occupancy holding which was held by Ibrahim Sheikh and Sakina Bibi under the landlords. The interest of Ibrahim Sheikh passed later on to Ramswami Chatia. At that stage a suit for recovery of rent being Rent Suit No. 1654 of 1938 was instituted by defendant 1 against Ramswami Chatia and Sakina Bibi. The suit was framed under the provisions of Section 148-A, Bengal Tenancy Act, the co-sharer landlords being impleaded in the suit. On 3-11-1938 the suit resulted in a decree. On 5-12-1940 defendant 1 started execution of the said decree. The tenancy was brought to sale on 15-2-1941 and was purchased by the decree-holder, defendant 1. The auction-purchaser took delivery of possession through Court. Meanwhile in 1933 Ibrahim Sheikh mortgaged a portion of the occupancy holding in favour of Nilratan, plaintiff in the suit which gave rise to Second Appeal No. 1211 of 1944. In 1934, Ibrahim Shiekh mortgaged another portion of the occupancy holding to Snehalata, plaintiff in the suit out of which Second Appeal No. 1441 of 1944 arose. The mortgagees instituted suits on their mortgage and recovered decrees and in execution of those decrees the mortgaged property in each case was brought to sale on 14-12-1939 and was purchased by the decree-holders. Notice of the confirmation of sale was served on the landlords on 29-6-1940, that is, before defendant 1 started execution of his decree for rent. The plaintiffs being resisted in taking delivery of possession started proceedings under Order 21, Rule 100, Civil P. C., which were dismissed on 28-11-1941, The plaintiffs started the present suits on 9-2-1942 for declaration of their respective titles and for recovery of possession.

(3.) The main defence to these suits was that the interest of the plaintiffs had passed by the rent sale which took place on 15-2-1941 and the plaintiffs have, therefore, no title as claimed.