BADRI NARAIN SINGH Vs. BAGESHWARI PRASAD DUBEY

JUDGEMENT

(1.) This is an appeal against a decree of the Additional Subordinate Judge of Gaya.

(2.) In village Kusahan Pipra there was a Tauzi No. 2578, comprising several separate accounts. We are concerned here with a share of two annas recorded in separate account No. 7 which formerly belonged to one Gajraj Singh, and on his death passed to his widow Pachhlari Kuer. It is common ground that on bar death the property passed to Fateh Bahadur and Tika Ram, sons of Gajraj's divided cousin Uttim Singh, whose other sons Bishwanath and Bhondu were then dead. In the year 1923, a certificate under the Bihar and Orissa Public Demands Recovery Act, 1914, was filed for the recovery of arrears of cess due in respect of separate account No. 7. In execution of this certificate, the share was sold on 29-10-1923 and was purchased by Harbans Prasad Dubey, the original plaintiff in the suit. By this time Fateh Bahadur and Tika Bam were dead. Three certificate-debtors were named in the certificate, Mathura and Matukdhari, sons of Fateh Bahadur, and Parichhit, son of Bishwanath. The sale was confirmed in due course and Harbans took delivery of possession on 23-8-1924 and got himself recorded as proprietor of this share on 6-5-1925. At that time, a batwara proceeding was pending in respect of Tauzi No. 2578. Harbans intervened, was allotted a new Tauzi No. 11210, in respect of the two anna interest purchased by him, and got delivery of possession over it on 2-5-1928. In the meantime, Mortgage Suit No. 66 of 1927 had been instituted in respect of the two annas share on the foot of a simple mortgage bond executed by Fateh Bahadur and Tika Bam. For some reason, Jwala Prasad Dubey, father of Harbans, was impleaded in the suit instead of Harbans, and although a decree was obtained against him in the Court of first instance, the suit was dismissed against him by the High Court in appeal on the ground that Harbans was the real purchaser in the certificate sale. On 8-1-1987, Tauzi No. 11210 was sold in execution of the decree in mortgage Suit No. 66 of 1927 and was purchased by Mahabir Prasad, defendant l in the present suit, from whom the appellant before us derives his title, and the purchaser obtained delivery of possession in June 1937. The present suit was brought for a declaration that Harbans Dubey's title was unaffected by the mortgage, and for confirmation of his possession over the suit property, and in the alternative for recovery of possession.

(3.) The defence taken was that Harbans purchased the property as benamidar of the certificate-debtors and that the reel owners of the property were fully represented in the mortgage suit; secondly, that even conceding that Harbans was the real purchaser be acquired merely the right, title and interest of the certificate debtors.