BISWANATH NAIK Vs. JAHARALI KHAN

JUDGEMENT

(1.) NARAHARI Mohapalra defen dant 4) was the occupancy Dhulibhag tenant of an area of 3. 278 acres of land in khala No. 231 under Touzi No. 5689 in village gothada (see C. S. record of rights of the year 1929, Ext H.) Though he was liable to pay Dhulibhag rent, he under separate arrangement will the then landlords commuted it to cash rental of Rs. 15-4-0 and used to pay cash rents and obtain receipts. He transferred 410 and 200 decimals of land in plot No. 961 under the aforesaid Khata by two registered Kabalas (Exts. 3/c and 3/b) dated 5-4-1937 and 18-10-1938 for Rs. 200 and Rs. 100 respectively in favour of Jabarali and Gaharali who were plaintiffs in Title Suit No. 216 of 1953 out of which second appeal No. 276 of 1963 arises. The lands covered by Exts. 3/c and 3/b are respectively mentioned in Schedules A and A-1 of the plaint. Narahari transferred. 280 decimals of land from the same plot by a registered Kabala (Ext. 3/a) dated 1810-1938 for a consideration of Rs. 100 in favour of Mithan Bibi and Ysuf. Ysuf in his turn transferred his interest of. 140 decimals for Rs. 200 by a registered sale deed (Ext. 3) dated 3-1-1950 in favour of Jama Dei who was plaintiff in Title Suit no. 217 of 1953 out of which Second Appeal No. 277 of 1963 arises.

(2.) TOUZI No. 5639 was purchased in revenue sale by Kumar Sahu on 12-9-1945 under Ext. E. He transferred the same by a registered sale deed (Ext. D) dated 142-1949 to Biswanath Naik and two others. The entire body of landlords consisting of Biswanath Naik and two others filed Rent Suit No. 4457 of 49-50 on 12-4-1949 against Narhari alone for recovery of Bhag due tor the years 1955 and 1956 V. S. corresponding to 1948 and 1949 (see Ext. C ). They obtained an ex parte decree (Ext. 2) on 15-5-1950 for recovery of Rs. 366-14-9. Execution Case No. 671/5253 was filed for realisation by sale of 2. 651 acres of land of which the disputed lands are a part (see order-sheet dated 7 7-1952 Exts. 1 and 1/a)

(3.) ON 16-3-1953 Jaharali, Gaharali and Jema Dei filed an application under Order xxi, Rule 52, Civil Procedure Code claiming the disputed lands. On 28-3-1953 the rent Court directed the objectors to be impleaded as judgment-debtors in the execution case and asked them to pay up the decretal dues by 5-4-1953. On 288-1963, Jaharali and Gaharali filed T. S. 216 of 1953 and Jema Dei T. S. 217 of 1953. On 29-8-1953. 2. 651 acres of land including the disputed lands were put to sale and were purchased by defendants 1 to 3. The case of the plaintiff's in both the suits is that as they were not parties to the decree (Ext 2), it was a money decree not affecting their right, title and interest in the disputed lands and that the execution sale is not binding on them.