SUNDAR LALL JHA Vs. NABI MISSER

JUDGEMENT

(1.) This is an appeal by the plaintiffs under Clause 10 of the Letters Patent from the Judgment of Das, J., who, agreeing with the Courts below, has dismissed their suit for declaration of title and recovery of possession in respect of 12 annas interest in the land in suit, and for a further declaration that the sale-deed in Bent Execution case No. 2163 of 1940 was not binding oil them.

(2.) The facts giving rise to this appeal, which are no longer in controversy, are as follows: One Puhupnath Jha, purchased the suit land, which is an occupancy holding, on the 13th of July, 1886. He died issueless, leaving behind as his heirs, the sons of his four pre-deceased brothers. The plaintiffs are the heirs of three of those brothers. The fourth brother had a son, Brahmalal, father of the defendant third party in the action. Brahmalal, was alone recorded in the record of rights, prepared at the time of the cadastral survey, as the tenant in respect of the holding. The Courts below concurrently found that the heirs of all the four brothers of Puhupnath had interest in the holding, but Brahmalal was allowed to represent the holdings and he was accordingly alone recorded in the landlord's sharista. The rent of the holding fell into arrears and the landlord brought a suit against Brahmalal alone for arrears of rent and obtained a decree on the 14th of June 1938. Brahmalal died after the decree, and execution was taken out on the 2nd of August 1940, in Rent Execution Case No. 2163 of 1940 against his son Ratanlal and the entire holding was sold on the 17th of January 1941, in execution of the decree and purchased by the landlord, who later on settled the land with the defendant first party.

(3.) The case of the plaintiffs is that they had no knowledge of the execution case or the sale of the holding and they came to know of the sale for me first time in May, 1945, when they were dispossessed by the defendant first party. It is not disputed now that the decree for arrears of rent obtained against Brahmalal had the effect of a rent decree; but the plaintiffs' case is that the sale held in execution of the decree, taken out against Katanlal alone, is not binding on them because, according to them, Ratanlal was never put forward by them to represent the holding, nor was he impleaded in the execution proceeding in a representative capacity.