SATYENDRA KUMAR GUPTA Vs. RAMESHWAR MANDAL

JUDGEMENT

(1.) The defendants first party are the appellants in this appeal. It arises out of a suit for declaration of title and confirmation of possession, or, in the alternative, for recovery of possession of an area of about 25 bighas, 1 katha, 2 dhurs of land appertaining to Khata No. 17/K of Village Thalaha. The khata in question stood recorded in the record of rights in the name of Bachcha Mandal. This Bachcha Mandal executed a sale-deed on the 7th of February, 1922, conveying the entire area to one Raj Kumar Mandal and the said vendee came in possession of the area demised, and thereafter the son of Raj Kumar, who is the plaintiff in the suit, came in possession of this land on the death of his father. The plaintiff alleges that in Asrah 1351, Fasli he learnt that the defendants first party appellants, who were the landlords, instituted a suit for rent in respect of the holding in question, and in execution of the decree got the lands sold and purchased themselves. It is alleged that all the tenants interested in the holding were not made parties to the rent suit or in the execution proceedings arising out of the said decree; nor was the plaintiff's father or the plaintiff who was purchaser of the holding from the recorded tenant as early as 1922 impleaded as a party to the execution case as it should have been done after the amendment of the Bihar Tenancy Act recognising such a transfer as binding on the landlord. The plaintiff accordingly averred that the decree obtained in the suit had the effect merely of a money decree, and the execution sale also took the character of sale in execution of a money decree, and consequently only the right, title and interest of the judgment-debtor passed under the sale and not the holding itself.

(2.) The defendants first party and the defendants second party, who claimed to be the settlees under the defendants first party, filed written statements contesting the suit. The defendants first party alleged that the plaintiff had no cause of action, and that the suit was barred by general and special law of limitation, that the sale-deed in favour of the plaintiff or his father was a fraudulent transaction and that the plaintiff or his father never came in possession of the lands by virtue of the said purchase. They also averred that the rent suit and the rent decree were properly constituted, and the sale in execution of the decree which was a rent decree passed the holding itself and not merely the right, title and interest of the judgment-debtor. The defendants first party further stated that after the delivery of possession through Court they came into possession of the property, and thereafter they settled portions of the land out of the holding with defendants second party. The defendants second party supported these allegations of the defendants first party appellants, and claimed to be in possession of the entire lands.

(3.) The two Courts below have concurrently found that the sale-deed in favour of the plaintiffs' father in 1922 was a genuine document, and by virtue of the sale, the plaintiff and his father came in possession of the disputed lands. They have also held that the rent decree had the effect of merely a money decree inasmuch as all the heirs of the recorded tenant, Baehcha Mandal, were not made parties to the suit, and secondly because the plaintiff or his father whose transfer had come to be recognised as binding on the landlord by virtue of the amendment to the Bihar Tenancy Act was not made a party to the execution proceedings, and, therefore, the sale held in execution of such a decree had merely the effect of a money sale and did not affect the title of the plaintiff to the disputed lands. A further contention which was raised in the case was whether the suit was barred by limitation in view of Article 3, Schedule III of the Bihar Tenancy Act, because the dispossession was alleged to be a dispossession by the landlord. Both the Courts below have repelled this contention, and they have held that the suit was governed not by this special limitation but by general limitation, and, as such, was well within 12 years of the alleged dispossession. The trial Court found on remand that the dispossession took place as a result of delivery of possession in October 1938, whereas the appellate Court has found that there was no actual dispossession of the plaintiff at the time of the said delivery of possession but the plaintiff was dispossesed from the lands by the settlement-holders sometime about 1944 within two years of the date of the suit. In that view the appellate Court has held that even if the special limitation under the Bihar Tenancy Act applied to the case, the suit was not barred. Accordingly the Courts below have decreed the suit granting the reliefs claimed by the plaintiff.