CHANDIPRASAD Vs. AWADH NARAIN JHA

JUDGEMENT

(1.) In the suit to which this appeal relates, there are various sets of defendants, the appellant being the defendant fifth party. The suit was for declaration of title and confirmation of possession in respect of a certain area of land comprised in Khatas 46 and 55. These Khatas belonged to the head of certain family, and later came to be inherited by three different branches of the family including the branch or one Hiraman, defendant No. 1. On the pleadings, it is not disputed that the disputed lands formed a separate unit of tenancy between Hiraman defendant No. 1 and the landlords. The plaintiffs in April 1932 purchased these lands from Hiraman It appears that the landlords instituted a suit for rent for the lands in question impleading the original tenants, and obtained a decree for rent. This was in February 1934, and in execution of the said decree the landlords got the lands sold and purchased themselves in November 1935. An application under Order 21, Rule 90, Civil Procedure Code was filed by the plaintiffs who had purchased the disputed area, for setting aside the sale in favour of the landlord-decree-holders, and in that proceeding a compromise petition was eventually filed by virtue of which the plaintiffs- were allowed to make a deposit of a certain sum of money within a certain period in order to have the sale and delivery of possession set aside. This the plaintiffs did, and therefore, the terms of the compromise took effect resulting in cancellation of the sale in favour of the landlords. The landlords, however, instituted another suit for rent, being Rent Suit No. 14051 of 1937. This time again it was against the original tenant and not against the plaintiffs who were the transferees. In that rent suit, the landlords obtained a decree in December 1937, and in execution thereof they got the lands sold in May 1938. The lands were purchased by the defendants fourth patty at the auction sale, and the defendants fourth party subsequently assigned their interest to the appellant. In that execution case, delivery of possession was also said to have been effected in February 1939. The plaintiffs, however, claim to have remained in possession of the area purchased by them, and they allege that because they were not party either to the rent suit or to the execution proceedings, their interest in the lands was unaffected by any such sale in execution of the said decree. The plaintiffs, however, state that there was some adverse order passed against them in a proceeding under Section 144, Criminal Procedure Code, and therefore, they instituted the present suit. The most material part of their averment is that as a result of the compromise arrived at in the proceeding under Order 21, Rule 90, Civil P.C., between the landlords and themselves in which they deposited the money required for setting aside the sale and which the landlords eventually withdrew, their tenancy was recognised by the landlords. This was all the greater reason why the subsequent suit for rent against the original tenant could not effect the plaintiffs' interest in the disputed lands.

(2.) The appellant, on the other hand, contended that there was no recognition of the plaintiffs as tenant; and in the compromise effected in the proceeding under Order 21, Rule 90, Civil P.C., aforesaid, the landlords did not concede to the plaintiffs any more than the right to deposit the decretal dues, or the amount for which the sale had been effected. In addition to this defence, there were other defences to the action which it is hardly necessary to mention except the defence as to the suit being barred under S, 47 of the Code of Civil Procedure, and also by the general and special law of limitation.

(3.) The two Courts below have decreed the plaintiffs' suit and held that the effect of the compromise in May 1937, in relation to the proceeding under Order 21, Rule 90, Civil P.C., amounted to a recognition of the tenancy by the landlords. They have, therefore, held that the subsequent suit for rent and the decree obtained thereunder had only the effect of a money decree, and could not, in any manner, prejudice the interest of the plaintiffs. It has been further found that the plaintiffs were dispossessed within two years of tile date of the action, and therefore, there was no question of limitation in the case either under the general or under the special law of limitation, and it has been held that the suit was not barred either under Section 47, or under Order 21, Rule 90 of the Code of Civil Procedure.