RAMANAND SINGH Vs. RAM SAKAL RAUT

JUDGEMENT

(1.) This is an appeal by defendant J. against the concurrent decision of the courts below holding that his defence, to be stated hereafter, is barred under Order 21, Rule 103, of the Code of Civil Procedure.

(2.) The plaintiffs brought a suit for a declaration of title to and recovery of possession of the entire plot 2275 under khata 273. It is not necessary to give the facts in detail. The plaintiffs claimed title to the entire plot 2275 by virtue of an auction-purchase by their father, Mangdu Raut, in execution of a mortgage decree, in favour of Sheo Bhajan Singh against Sublaik Singh and others in 1934. The defence of the appellant was that only half of plot 2275 was mortgaged to Sheo Bhajan Singh, and, therefore, the plaintiffs acquired title only to one half of plot 2275. Their further defence was that SublaiK, the recorded tenant and the mortgagor, gave the other half of plot 2275 in ijara to Jhumak Pasi, which was redeemed by the defendant, as an heir of Subiaik, on 21-7-46.

(3.) In order to appreciate the findings of the Courts below and the case of the parties, it is necessary to state a few facts more. The landlord of khata 273 obtained a rent decree against Sublaik the recorded tenant, and in execution of that rent decree this khata, which includes plot 2275, was put up to sale. Sheobhajan Singh, the simple mortgagee, in order to prevent the sale deposited the entire decree amount under Section 170(3) of the Bihar Tenancy Act and became statutory mortgagee of khata 273, and got possession under Section 171 of the Bihar Tenancy Act. The rehandars of the holdings, namely Bhagwan Shau, Jhumak Pasi and Sahdeo Lohar brought a title suit against Sheobhajan Singh, the mortgagee, Sublaik Singh, the mortgagor, and three other persons, for recovery of possession. The suit was decreed, and in execution of that decree delivery of possession was taken out by the plaintiffs of that suit, namely, the ijaradars, mentioned aforesaid. At the time of the delivery of possession, Sheobhajan Singh, the mortgagee, and one of the judgment-debtors of the suit, Ramnand Singh, the present appellant, Jyoti Ahir, settlee of plot 2275 and another from Mangroo, plaintiffs' father, and Mangroo himself, obstructed the decree-holders in taking delivery of possession. The decree holders of that suit, including Jhumak Pasi, who is, defendant 2 in the present suit, out of which the appeal arises, and who was ijaradar of half of plot 2275, complained of the resistance and obstruction offered by the aforesaid persons to the executing court by an application under Order 21, Rule 97, of the Code of Civil Procedure (Ex. 4) on 29-6-37. This application was allowed in respect of two plots, with which we are not concerned, and dismissed with regard to plot 2775 on 10-11-37, the order of which is exhibit 8A. Prom this order it appears that the present appellant laid claim to plots 1523 and 233 only, and not at all to plot 2275. Plot 2275 was claimed by Jyoti Ahir, plaintiff 4, and Mangroo Ahir, father of the present plaintiffs, only. Jyoti Ahir and Mangroo Ahir were opposite parties 3 and 4 to the proceeding under Order 21, Rule 97 of the Code. The learned Munsif, who decided this proceeding, ordered as follows: