HITLAL MAHTON Vs. KAMESHWAR SINGH BAHADUR

JUDGEMENT

(1.) This is an appeal by the plaintiff against the Judgment and decree of the Additional District Judge of Purnea confirming those of the Munsif of the same place. The plaintiff filed the suit for a declaration that his title in respect of the holding in suit had remained unaffected by the execution sale and subsequent delivery of possession, and re-settlement of the same by the defendant 1st party. He also prayed for recovery of possession.

(2.) The facts leading to the present litigation are the following: There was a holding of 13 bighas, 8 kathas, 2 dhurs bearing a rental of Rs. 21-11-9. It had been mortgaged to the plaintiff and the defendants 3rd party. The mortgagees brought an action on the mortgage, obtained a decree and in execution of that decree they put to sale the said holding and purchased it themselves on 10-4-1929. On 22-2-1930, the sale was confirmed and on 29-3-1930, delivery of possession was given to the mortgagee auction-purchasers. There was subsequently a partition in the family of the plaintiff and the defendants 3rd party in which the holding in question fell to the share of the plaintiff. In the year 1930 the proprietor of the Darbhanga Raj filed Rent Suit No. 1709 of 1930 in respect of the holding in question against the original tenant, Srichand Mahton. In that suit for rent, the mortgagee auction purchasers were not impleaded as party-defendants. The rent suit was decreed, and in execution of that decree the landlord-decree-holder purchased it on 9-2-1934. On 28-10-1934, delivery of possession was given to the landlord auction purchaser. In 1937 the proprietor of the Darbhanga Raj settled it with one Ramjivan Singh who subsequently, in the year 1944, sold it to the defendants 2nd party. The present suit was filed on 17-10-1945.

(3.) The plaintiff's case was that the sale in execution of the decree for rent only conveyed the right, title and interest of the Judgment-debtor in the holding to the auction-purchaser. According to him, the holding being transferable, the mortgagee auction-purchasers had become really the raiyats of the holding, and, as they had not been impleaded in the rent suit, the execution sale had the effect of a sale in execution of a money decree only. On this basis it was claimed that the right of the plaintiff was not affected by the sale and he was entitled to recovery of possession.