NANDAN PRASAD SAO Vs. UGRAH SAO

JUDGEMENT

(1.) This is an appeal by defendant 13, Sheonandan Prasad Sao? purchaser of plot No. 1904 of Khata No. .175, in village Masaurhi Bazar, in the district of Patna. There stands a 'gola' with 'parti' land attached to it on this land which was originally recorded in the name of Gobardhan Sao, father of one Rangi Sao, and the plaintiff Shyamlal Sao. A suit was instituted by Bipat Singh, father of defendants 1 and 2, and Raja Singh, father of defendant 5, as. well as defendants 1 to 4 for contribution against the plaintiff, Shyamlal Sao, and his brother Rangi Sao, in the first court of Munsif at Patna. It was numbered as Money Suit No. 162 of 1925. It was decreed against all the defendants. An appeal preferred against that decree was allowed by the first appellate court, but in second appeal the High Court held that Rangi Sao was not liable to contribution, but the plaintiff Shyamlal Sao was in fact liable, and the suit was thus decreed in a modified manner. The decree-holders started execution case No. 334/30 to enforce their claim under the decree by attachment and sale of the sixteen annas interest in the gola house together with the parti land on plot No. 1904, the subject-matter of the present suit. An objection was made by Rangi Sao in the execution proceeding which gave rise to miscellaneous case No. 140 of 1930, and by order dated 81-1-1931, the executing Court held that only the right, title and interest of Shyamlal Sao, the plaintiff, in the gola was liable to be sold which was a moiety in the property, but the remaining interest belonging to Rangi Sao could not be put-to sale. The sale proclamation issued in the execution proceeding also mentioned only the right, title and interest of Shyamlal Sao, the plaintiff, as being advertised for sale. The property was sold on 11-7-1931 for rupees one thousand and purchased by defendants 1 to 12. Plaintiff's case further is that he discovered subsequently that the decree-holders, who were also the auction purchasers, managed to get the sale certificate incorrectly prepared in a fraudulent manner referring to the entire sixteen annas interest in the property as having been sold at the auction and purchased by the decree-holders. There was also a symbolical delivery of possession obtained, but in fact Rangi Sao and the plaintiff remained in possession of the same. Rangi Sao, however, died leaving behind a daughter and the plaintiff was in possession of the property up to the date of the institution of the suit, plaintiff also stated that Rangi Sao and he himself executed a number of ijara deeds evidenced by Ext. P series from 1920 onwards and when defendants 1 to 12 acquired their interest in the property at the auction sale it was subject to the payment of the ijara money to the various mortgagees who held possession over portions of the property individually, but collectively were in possession of the entire house. It is alleged further that plaintiff had a cause of action as he learnt on 28-5-1945 about the fraudulent sale and dakhaldehani of the entire sixteen annas interest by defendants 1 to 12 when in fact they were entitled to remain in possession only of half of gola house on plot No. 1904. He prayed for confirmation of possession of the eight annas interest in the property and, in the alternative, recovery of possession on adjudication of the facts stated by him in the plaint.

(2.) Defendant 13 pleaded in bar that the suit was liable to be dismissed, because he was a bona fide purchaser for. a sum of rupees five thousand of the suit property under Ext. B dated 23-8-1941, from defendants 1 to 12. They held sixteen annas interest under the sale certificate (Ext. G) dated 10-12-1931 and were also in possession of the entire house since 11-8-1932, as shown by Ext. H. Out of the consideration of rupees five thousand, the plaintiff retained a sum of Rs. 3850.00 with him to pay to the various ijaradars and handed over the balance to the purchaser. Since defendants 1 to 12 were duly in possession and also held the sale certificate, defendant 13 acquired a good title to the house in question under the sale deed executed in his favour. He pleaded that he was in possession of the house after having redeemed the various ijara deeds on 18-5-1942. The plaintiff, therefore, had no right to any portion of the suit property.

(3.) The learned Munsif of Patna, who tried the suit, held that the plaintiff was not entitled to recover possession of the house standing on plot No. 1904 as the house was in possession of the ijaradars who had mortgage bonds executed by Shyamlal Sao and his brother Rangi Sao. The ijara money was paid by the appellant Sheonandan Prasad Sao. who was entitled to eight annas interest in the suit property as a purchaser from defendants 1 to 12. The latter acquired eight annas interest in the property at the auction sale in 1931. Accordingly the appellant was entitled to redeem the ijara deeds of the mortgagees in possession and was entitled to retain possession of the entire gola by virtue of his right as a subrogee. The learned Munsif disallowed the claim of the defendants to hold the entire sixteen annas interest, as, in his opinion, what was acquired by defendants 1 to 12 at the auction sale in 1931 was only the moiety interest of plaintiff Shyamlal Sao, and not the entire sixteen annas interest. Accordingly, he held that the plaintiff was entitled to a declaration that he had a right to the share of his brother Rangi Sao which was exempted from sale as mentioned above. Since, however, he had not made a prayer for redemption of the interest of Rangi Sao on payment of the proportionate amount of mortgage money he was not entitled to khas possession of the house. He allowed, however, the plaintiff to recover possession of the parti portion of plot No. 1904 because in his opinion this was independent of the house which alone was mortgaged under Ext. P series, and to which alone defendant 13 can claim the right of subrogation. Sheonandan Prasad Sao preferred an appeal against the judgment of the learned Munsif & the learned Additional Subordinate Judge of patna Who heard the appeal also affirmed the findings of the learned Munsif with this modification that the plaintiff could not be held entitled to the entire parti portion of the house but only to the extent of half of it. Since, however, there was no prayer for partition the plaintiff was entitled to joint possession of the. parti land to the extent of his eight annas interest along with defendant 13, Sheonandan Prasad Sao. But he affirmed, as I have said above, the declaration made in favour of the plaintiff by the learned Munsif that he was entitled to eight annas interest in the property as a survivor after the death of his brother Rangi Sao. The present appeal is directed against the judgment and decree of the learned Subordinate Judge.