JAGDEO CHAUDHARY Vs. DEO CHAUDHARY

JUDGEMENT

(1.) This is a plaintiffs' Second Appeal. The facts necessary for the disposal of this appeal are as follows. Sheogulam Chaudary deceased owned and possessed 6.86 acres of kasht land in village Ghosia, Tola Ramnagar. He died 14 or 15 years prior to the institution of the suit leaving him surviving his widow Mostt. Dhanwantia. On 24-11-1924 the defendants obtained a money decree against Sheogulam and put the decree into execution in Execution Case No. 2290 of 1936 and purchased the aforesaid land at auction on 12-7-1937 and subsequently obtained delivery of possession on 1-12-1937. By two deeds of gift dated 23-11-1944, exhibits 2 and 2(a), Dhanwantia transferred this land to Jatoo Chaudhary. Jatoo instituted this suit on 18-11-1947 for a declaration of his title to the disputed land and for confirmation of possession or, in the alternative, recovery of possession thereof. His case was that the defendants had not acquired any title by virtue of the auction sale in Execution Case No. 2290 of 1936. He alleged, further, that the defendants were not in possession and that Dhanwantia, after the gift, put him into possession. He died during the pendency of the suit and his nephew and widow, who are the appellants before this Court, were substituted in his place. The defence was that the gift was collusive and fraudulent and conferred no valid title on the plaintiffs, that the defendants had acquired valid title by purchase at the auction sale and obtained possession and that the plaintiffs were never in possession.

(2.) The learned Munsif held that the deeds of gift in favour of Jatoo were invalid and inoperative and were not acted upon and the plaintiffs never obtained possession of the disputed land. He held further that the defendants had acquired the disputed land at auction and were in possession. He, therefore, dismissed the suit.

(3.) The learned Subordinate Judge, however, held that the defendants had not acquired a valid title by virtue of their purchase at the auction sale for the simple reason that the execution was levied not against Dhanwantia who was then the sole surviving representative of sheogulam but against another person. He held that the auction sale had not the effect of destroying the title of Dhanwantia. As regards the title of the plaintiffs he, held that the deeds of gift were invalid for want of proper attestation, and, therefore, he held that the plaintiffs had not acquired any title. Since, however, the defendants were found to be in possession of the disputed land, he unsuited the plaintiffs. The decree of the learned Munsif was, therefore, affirmed, though on different grounds.