RAMADHAR UPADHYA Vs. BALDEO AHIR

JUDGEMENT

(1.) Ramadhar Upadhya and Lakshman Upadhya, the two appellants, had obtained a decree for Rupees 11643-27 paise on account of mesne profits besides costs in T. S. 74 of 1952 in the court of Munsif, 2nd Buxar. The appellants had executed the said decree in Title Execution Case No. 23 of 1968 and sought to realise the aforesaid amount of decree for mesne profits and costs by sale of 7.31 acres of lands belonging to the judgment-debtor-respondents.

(2.) The respondents filed an objection on the grounds, inter alia that they being under-raiyats, their lands could not be sold in execution proceeding. On their objection, a Misc. Case No. 40 of 1968 was registered and the seme was disposed of by the 2nd Munsif, Buxar, by order dated 31st May, 1969. The learned Munsif came to the conclusion that the lands comprised in plots Nos. 48, 82 and 84 alone could be sold in the execution proceeding, as on the lands under those three plots, the respondents' interest was not that of a sikmidar, that is, not that of under-raiyat. Regarding the lands covered by plots Nos. 132, 133, 104, 50, 58 and 169, he held that the respondents had acquired sikmidars' interest and, therefore, they were released from the execution proceeding. Aggrieved by the said order, the appellants had preferred an appeal. The appellate court also came to the same conclusion and affirmed the order passed by the learned Munsif.

(3.) Learned counsel for the appellants assailed the judgment of the learned court below and contended that the learned Judge has erred on the question of law. According to him, if a under-raiyat acquires occupancy right, the occupancy holding can be sold in execution proceeding. The other question of law which he has raised is that it was incumbent upon the court below to come to a finding firstly that the sale proceeds of the land comprised under plots Nos. 48, 82 and 84 would be sufficient to meet the decretal amount. If the finding was that the sale proceeds would be sufficient, then only in that circumstance, the court below could have released the Land comprised in other plots from the execution proceeding. In the instant case, since there has been no finding in that regard, the judgment, according to him, is not in accordance with law.