NITYA GOPAL GOSWAMI Vs. SM GANGAMANI DEVI

JUDGEMENT

(1.) This ia an appeal by plaintiff 6, againat the judgment and decree passed by the Additional Subordinate Judge at Purulia, dated 10th April 1947, reversing those of the Munsif at Raghunathpur.

(2.) The present appellant along with others had filed a suit for a declaration that the auction sale in Rent Execution case no. 136 of 1936-37 of the Court of the Munsif at Raghunathpur was ultra vires and that it did not affect the interest of the plaintiffs. They further prayed for khas or joint possession, aad mesne profits.

(3.) The case of the plaintiffs was that in village Jagannathdih there was a brahmottar tenure in which one Gostho Bihari Goswami had one-third share, Banbihari Goswami had one-third share, Gumdas Goswami had one-sixth share and Ramdas Goswami had one-sixth share. The rent and cess in respect of the tenure were payable to one Shankari Prasad Singh Das, defendant 3. Gurudas Goswami had gifted his share in the tenure to his mother Sourabh Sundari Devi, and, after the death of the latter, the share in the tenure was inherited by Nitya Gopal Goswami, who is the appellant in this Court. In the year 1933, the landlord instituted a rent suit and, without proper service of notice, succeeded in getting a fraudulent and collusive rent decree. The landlord executed that decree in execution case No. 136 of 1936-37, and put the entire tenure to sale which was purchased by defendant 2, Bhudeb Chandra Roy, in the farzi name of his wife, Sm. Gongamani Devi, defendant 1. On 3rd July 1937, the auction purchaser claimed to have taken symbolical delivery of possession over the tenure. The case of the plaintiffs further was that the landlord had not joined Sourabh Sundari Devi as a party defendant in the rent suit, and, though Gostho Bihari Goawami had died before the execution was started, the landlord chose to proceed in execution against him as if he was alive and his heirs and legal representatives were not brought on the record. On account of this, the plaintiffs claimed the rent decree and the rent sale to be void and without jurisdiction.