SM RADHA PEARY KUER Vs. GOPAL SARAN

JUDGEMENT

(1.) This is an appeal by defts. 1 & 5 against the judgment & the decree passed by the third Addl. Subordinate Judge of Gaya reversing those of the Munsif of Jehanabad.

(2.) The pltfs. filed the suit for a declaration that the Mokarrari & usufructuary mtge. interest relating to the said Mokarrari interest or any other encumbrance as alleged by the defts. against them who were the purchasers at a revenue sale be annulled. They further prayed for recovery of sir possession over eight annas share of tauzi No. 4060 by annulling & avoiding all encumbrances of all sorts over the same. They further claimed past & future mesne profits from the date of the suit till the recovery of possession as also the floats of the suit.

(3.) The case of the pltfs. as set out in the plaint was that village Sarthua Ratanpore alias Birpore original tauzi No. 4060 was partitioned under the Estate Partition Act in the year 1919 by which ten separate tauzies were carved out of the parent tauzi. One of the newly carved out tauzies retained the original tauzi No. 4060. The newly formed tauzi No. 4060 fell in arrears of revenue which resulted in its sale and purchase by the pltfs. by an auction sale held in June, 1937. The purchase was made in the name of pltf. 1 as the Karta of the joint family of the pltfs. The revenue sale was confirmed on 18-8-1937. The auction purchaser after obtaining the sale certificate got delivery of possession on 23-12-1937. The case of the pltfs. further was that when they wanted to take sir possession of the tauzi they were resisted by the defts. from realizing rent from the raiyats to the extent of eight annas share on the ground that the latter were mokarraridars in respect of the said eight annas share since long before the date of the revenue sale. The defts. claimed their interest in the property as permanent mokarraridars as well as usufructuary mtgees. of the interest of some of the Mokarraridara. The pltfs. further alleged that by virtue of the revenue sale they acquired interest in the entire tauzi No. 4060 free from all encumbrances. They impleaded in the action persons interested in the said eight annas Mokarrari interest & their mtges.