MD YUSUF Vs. NARAYAN GHOSH

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent by the plaintiff against the decision of Narayan, J. who affirmed the decision of the Additional District Judge of Purnea. The plaintiff had instituted his suit for recovery of possession of a piece of raiyati land after a declaration that the shikmi interest with regard to it stands annulled. There had been a decree for rent and in execution of that decree the plaintiff was the auction-purchaser and he purchased on 11-3-1942, the occupancy holding recorded in the Survey as khata No. 45. THIS khata contains two shikmi khatas Nos. 41 and 42. For the present litigation we are concerned with khata No. 41 only. Subsequent to the sale the plaintiff took steps under Section 137, Bihar Tenancy Act for the annulment of the shikmi interest and notice under that section was served upon Musam-mat Rudia, the defendant. She, however, did not give up possession of the land in suit, namely, 4.34 acres of land. The Munsif decreed the suit whereas the Additional District Judge in appeal dismissed it.

(2.) THE principal question which was argued before the Additional District Judge was that in view of the second proviso to Section 162A, Bihar Tenancy Act the procedure adopted by the plaintiff under Section 167 of the Act was of no avail to him and that portion of the holding which concerned the shikmi interest of the defendant could not have been sold and the defendant was not in the least affected by the sale which took place. THE Additional District Judge was of the opinion. that having regard to the second proviso to Section 162A, Bihar Tenancy Act the court had no jurisdiction to sell that portion of the holding which concerned the shikmi interest of the defendant. Before the Additional District Judge an order-sheet of the executing court was produced and the Additional District Judge was prepared to make a remand to the court below to give an opportunity to the parties to produce further evidence on the point arising out of the order sheet. But it appeared that the pleader for the plaintiff was not prepared to accept the suggestion of the Judge. Finally the Additional District Judge permitted the order sheet to be taken in as additional evidence under Order 41, Rule 27, and marked the copy of the order sheet as Ex. B. This order sheet showed that the executing court did not at all apply its mind to the consideration of the question whether the sale of that portion of the holding which was the shikmi khata No. 41 should take place. Had the executing court done so, it would have in all likelihood excluded that portion from being sold as the decree could have been satisfied without such sale. This view of the Additional District Judge was approved by Narayan J.