(1.) The substantial question to be determined in this appeal is whether defendant No. 1, Maharaja of Darbhanga had purchased 4 annas kham share of Touzi No. 543 of village Pali-mohan in execution of a mortgage decree.
(2.) The plaintiffs brought the suit on the allegation that Kuarji Jha owned 8 annas share in Touzi No. 543 of village Palimohan, that he had executed on 18th June 1919, a mortgage bond in favour of Maharaja of Darbhanga for Rs. 3,000 with respect to 1 anna share of the Touzi, that on 2nd March 1922, Kuarji Jha executed a registered deed of gift in favour oi his son Balbhadra Jha, plaintiff No. 1, and Bhikhia Jha, father of defendant No. 2, wherein Kuarji made a gift of 4 annas 10 gandas out of 8 annas share to plaintiff No. 1 and the remaining 3 annas 10 gandas share to Bhikhia Jha. On 20th August 1930 the Maharaja of Darbhanga, instituted a mortgage suit in respect of the mortgage bond, obtained a final decree, and in execution thereof he purchased 1 anna share of Touzi No. 543 which had an area of 20 acres 56 poles and which paid a proportionate revenue of Rs. 13/12/3. On a subsequent date the Maharaja Of Darbhanga wrongly obtained mutation of his name in register D with respect to 4 annas share in Touzi No. 543 out of the share of 4 annas 10 gandas recorded in the name of Balbhadra Jha in the said Touzi. The plaintiffs alleged that as a result of the execution sale the Maharaja of Darbhanga was entitled only to 1 anna share out of the Touzi, that, plaintiffs and defendants 2nd party were equally liable to the extent of 1 anna share mortgaged, that only 10 gandas out of the plaintiffs' share of 4 annas 10 gandas share should have gone to the Raj. The plaintiffs therefore claimed that they were entitled to the share of 3 annas 10 gandas and that a decree for joint possession should be passed in favour of the plaintiffs along with defendant No. 1, Maharaja of Darbhanga, The Maharaja of Darbhanga contested the suit on the ground that 1 anna pokhta share equivalent to 4 annas kharn share of Touzi No. 543 was mortgaged by Kuarji Jha, that the same milkiat share was purchased in the execution proceeding and that the mutation in the Land Registration case was rightly made. Defendant No. 2 resisted the suit on the ground that he was not liable to the extent of half the mortgage debt and the plaintiffs have no cause of action, Upon these contentions, the learned Sub-Judge held that the Maharaja of Darbhanga had purchased 4 annas kham share of Touzi No. 543 of village Palimohan in execution of the mortgage decree and that he was rightly recorded for 4 annas share out of the 4 annas 10 gandas share previously recorded in the name of the plaintiffs in the Land Registration Department. The Sub-Judge further held that the defendant 2nd party was liable to the proportionate extent of his share for the mortgage decree but the plaintiff was not entitled to recover possession of any share of the milkiat from defendant 2nd party in the present suit.
(3.) In support of this appeal Mr. Dutt addressed the argument that upon the proper construction of the sale certificate it ought to be held that the Maharaja of Darbhanga had purchased only 1 anna kham share of Touzi No. 543 of village Palimohan containing 20 acres 56 poles of land and of which the proportionate land revenue was Rs. 13/12/3. Learned Counsel referred to the sale certificate in which the property is described as follows: