PADMALAV MISHRA Vs. SRIMATI FULA DEI AND ANR.

JUDGEMENT

(1.) THIS is an appeal by the Plaintiff against the concurrent decisions of the two lower Courts dismissing his suit for declaration of title and confirmation of possession of the lands described in 'A ' schedule of the plaint and for a decree for partition and other ancillary reliefs.

(2.) THE Plaintiff 's case was hat the disputed properties originally belonged to one Bouribandhu Shadangi who obtained them by a registered partition deed dated 9 -10 -1911 executed between himself and his brothers. Bouribandhu was alleged to have mortgaged the suit properties on 3 -3 -1914 to one Satyabadi Hota who brought a mortgage suit and obtained sale of the same on 1 -10 -1929 (Ext. 3) in Execution Case No. 924 of 1928. He was alleged to have taken possession on 15 -10 -1930 (Ext. 6). Satyabadi was said to have remained in possession, as the undivided co -sharer of the disputed properties along with the brother and brother 's son of the said Bourihandhu until his sale to the Plaintiff on 13 -3 -1951. The Plaintiff, therefore, urged that be had obtained title and possession as an undivided co -sharer of the property and as such he was entitled to partition.

(3.) THE finding of both the lower Courts which is not challenged is that by the partition deed of 9 -10 -1911, Bouribandhu merely effected severance of joint family status with his other coparcener and that there was no actual partition by metes and bounds. The most important question for consideration, therefore, is whether the Plaintiff 's vendor Satyabadi obtained valid title to Bouribandhu 's interest by virtue of the mortgage decree and sale and delivery of possession. The sale certificate is dated 1 -10 -1929 in which Bouribandhu is shown as the judgment -debtor but the Defendant 's case is that Bouribandhu had died on 26 -11 -1928 and his legal representatives were not substituted in the execution petition. The question therefore is whether in such circumstances the sale is a nullity. The point is covered by ample authorities.