JADUNANDAN PRASAD Vs. BHAGWAT MAHTON

JUDGEMENT

(1.) This is a second appeal by the plaintiffs. It has been referred to a Division Bench by a Single Judge of this Court. The principal question for determination in this second appeal is if the claim of the plaintiffs with regard to 5.55 acres of land comprised in holding No. 206, tauzi No. 8163, is barred by reason of the provisions of Section 47, Civil P. C. The learned Munsif who dealt with the suit in the first instance held that the claim was not barred. The learned Subordinate Judge on appeal held that the claim was barred; hence this second appeal by the plaintiffs.

(2.) The appellants had brought their suit for a declaration of their title and confirmation of possession in respect of the lands of two holdings, 5.55 acres of land comprised in holding No. 206, and 1.04 acres of land comprised in holding No. 208 in village Haspur Chak Shakoor, bearing tauzi No. 8163. The learned Munsif gave a decree to the present appellants in respect of their entire claim. The learned Subordinate Judge on appeal dismissed the claim of the appellants with regard to holding No. 206, but confirmed the decision of the learned Munsif with regard to the lands in holding No. 208. The present appeal relates to holding No. 206 only, and, therefore, I need state only the facts so far as they relate to holding No. 206.

(3.) This holding was originally held by two brothers called Bhabichhan and Sukan. Sukan died in a state of jointness with Bhabichhan. Later on Bhabhichhan also died, leaving as his heirs two daughters, Jhalo Kuer and Etwaro Kuer (defendants 5 and 6). He also left two daughter's sons, Baijnath and Srichand (defendants 7 and 8). Bhabhichhan sold the entire area of holding No. 206 to the appellants under two sale-deeds dated 6-1-1926, and 21-6-1926. One Gursahai Mahton, the predecessor-in-interest of the principal defendants 1 to 4, purchased 3 annas proprietary interest in tauzi No. 8163 from a receiver in insolvency. He brought a rent suit No. 447 of 1936 with respect to holding No. 206 against Baijnath, defendant 7, without impleading the present appellants or defendants 5, 6 and 8. The present appellants intervened in that suit. The suit was decreed on 27-8-1937, against defendant 7 alone for arrears of rent, because the court did not accept the plea of recognition set up by the present appellants; but costs were decreed against the present appellants as well. In execution of the decree for arrears of rent Gursahai Mahton purchased the entire holding on 24-3-1938, and dakhal-dehani was obtained on 18-7-1938. The present appellants then preferred application under Order 21, Rule 100, Civil P. C., which was allowed by the trial Court as well as by the first appellate Court. In revision, however, this Court set aside the order of the Courts below on the application filed by the appellants under Order 21, Rule 100, Civil P. C., this Court holding that the present appellants, who were judgment-debtors, had no right to prefer an application under Order 21, Rule 100, Civil P. C. The appellants contended that in spite of the delivery of possession and the adverse order of the High Court, they continued in possession. In para 15 of their plaint, the appellants alleged that one Basudeo Narain Singh and certain other proprietors of the tauzi filed a suit for arrears of rent against some of the present appellants. Defendant 3 of the present suit filed a petition of intervention in that suit and later on the principal defendant 3 brought the plaintiffs of that rent suit into collusion and got a compromise petition filed, dated 11-2-1942, in which it was alleged that the present appellants had no connection with the holding. The present appellants filed an objection to the compromise and ultimately the rent suit (No. 3463 of 1941) was dismissed with costs against the present appellants and the question of title and possession between the appellants on one side and principal defendant 3 on the other was left open. The appellants alleged that the aforesaid compromise petition dated 11-2-1942, had cast a cloud over their title and, therefore, the appellants brought their present suit for a declaration of their title and confirmation of possession. The appellants alleged that the Banaras Bank Limited obtained a mortgage decree against the receiver in insolvency from which Gursahai Mahton had purchased 3 annas proprietary interest, and in execution of the said mortgage decree the 3 annas milkiat interest purchased by Gursahai Mahton was sold on 22-5-1937, therefore, Gursahai Mahton had no subsisting interest as a proprietor at the time when he obtained the decree in rent suit No. 447 of 1936. The sale in execution of the decree passed in rent suit No. 447 of 1936 was, therefore, not a rent sale, because Gursahai Mahton had no interest as a landlord at that time. As the decree was executed against Baijnath alone, the sale held in execution of the decree did not affect the interest of the present appellants who had acquired their title to the holding by prior sale-deeds of the year 1926. This was the basis on which the appellants brought their suit.