SHYAM NARAIN SINGH Vs. KHUBLAL MAHTO

JUDGEMENT

(1.) This appeal by the objectors opposite party is directed against the order of the learned additional Subordinate Judge, holding, on a reference made to him under Section 18 of the Land Acquisition Act, that respondents Kuer Nonia and Sahoran Nonia were entitled to two third share whereas the appellants were entitled to one third share in the amount of compensation in respect of the lands bearing plot No. 2280 to the extent of .025 acre, plot No. 2279 to the extent of 01 acre and plot No. 2283 to the extent of 03 acre, which were acquired for the construction of a village channel at Bhawalpur in the district of Saran These plots have bigger areas and the first two appertain to khata No. 420 whereas the third one appertains to khata No. 547 It may be stated here that Kuer Nonia (respondent No. 1) died during the pendency of this appeal and his heirs have been substituted on the record of this appeal.

(2.) The tacts giving rise to this appeal are these; The dispute in this case relates to the amount of compensation which is to be paid to the appellants on the one hand and the respondents on the other These lands, admittedly belonged to three brothers namely Ram Khelawan Misser, Namjad Misser and Jhoti Misser. One Dhuran Mehto happened to be the zarpeshgidar in respect of these lands. Ram Khelawan Misser died in state of ipintness with his other brothers leaving behind his widow Jagesara Kuer. She filed a title suit (No. 110 of 1938) against Namjad Misser. Jhoti Misser. Dhuran Mehto and five others for a declaration that she was entitled to get maintenance of Rs. 7 per month and she made a prayer that a decree for future maintenance may also be passed in her favour and a charge may be created on the properties mentioned in the plaint of that suit The suit was decreed on the 24th January 1939 holding that the plaintiff was entitled to yet maintenance at the rate of Rs. 4 per month with effect from the month of February 1939 and the properties mentioned in the plaint liable for the same (vide Exhibit 3 (a)) Maksudan Mahto was one of the sont of Dhuran Mahto and there was an insolvency case (No. 30 of 1936) in which Maksudan Mahto happened to be the insolvent. He had one-third share in the properties given in that zarpeshgi. The Nazir of the court was appointed receiver in that insolvency case and he transferred one third share in those properties in favour of Basudeo Singh. father of the present appellants by a sale deed dated the 25th June, 1937. It further appears that one Harihar had obtained a money decree in money suit No. 2 of 1939 against Namjad Misser and Jhoti Misser and he assigned that decree in favour of the appellants. That decree was executed in Money Execution case No. 972 of 1939 and the appellants purchased on the 10th February 1940 14 kathas and 16 dhurs of plot No. 2279 5 kathas and 13 dhurs of plot No. 2280, 15 kathas and 17 (27?) dhurs of plot No. 2283 and some other lands (vide the sale certificate Exhibit D) On the 20th April 1940 the present appellants took delivery of possession in respect of the lands they had purchased in Execution case No. 972 of 1939 and the certificate copy of the writ of delivery of possession has been marked Exhibit C. On the 8th March 1941 Mosammat Jagesara Kuer purchased two-third interest of 14 kathas and 16 dhurs of plot No. 2279, 5 kathas and 13 dhurs of plot No. 2280 and 15 kathas and 7 dhurs of plot No. 2283 in execution of the decree for maintenance against Namiad Misser, Jhoti Misser (brothers of Ram Khelawan Misser) and Dhuran Mahto This certificate of sale in Execution case No. 1522 of 1949 has been marked Exhibit 5. It was stated in the sale certificate that, out of the said plots one third had been excluded from auction sale by an order of the court in Miscelimeous case No. 73 of 1941 dated the 17th May 1941 and that the auction sale remained intact in respect of the two third share. Thereafter. Kuer Mahto and Sahoran Mahto instituted a title suit (No. 122 of 1941) against Mosammat Jagesara Kuer. Puran Mahto (son of Lachman Mahto and) Basdeo Singh (defendants 1, 2 and 3) for an adjudication that Puran Mahto and Basdeo Singh (and Jagesara Kuer) had acquired no title by virtue of a purchase at an auction sale held in execution case No. 1522 of 1940 in respect of the mortgagee's right of the plaintiff's nor could the mortgagee's right of the plaintiffs be adversely effected by the attachment and auction sale This suit came up for hearing on the 3rd September 1941 and the result that the suit was decreed in terms of compromise as against defendant No. 1 but dismissed against the other defendants for default. The certified copy of the compromise decree dated 3-9-1941 has been marked Exhibit 3 Prior to the compromise, Mosammat Jagesara Kuer had executed a sale deed (Ex. 1) on the 22nd August 1941 in favour of Kuer Mahto and Sahoran Mahto in respect of two-third interest in those three plots and the compromise decree was passed on the basis of this deed of sale. T have already indicated that one-third interest in those three plots was released from sale in Miscellaneous case No. 73 of 1941: but, being aggrieved by the order oassed in this case Jagesara Kuer filed a title suit (No. 65 of 1942) against Basdeo Singh and another for a declaration that the one third interest ought not to have been released from sale in Execution case No. 1522 of 1940 inasmuch as she (plaintiff) had a right to proceed against that interest also in execution of the decree for maintenance passed in her favour The suit was dismissed by the Munsif find then she preferred title appeal No. 49 of 1944 and the judgment the 6th December 1945 of that appeal has been marked as Exhibit E. The Additional Subordinate Judge held while dismissing the appeal, that Basdeo Singh (defendant No. 1) had purchased the property for value without notice which could not have been subject to the charges created by the decree for maintenance passed in favour of the plaintiff Mosammat Jagesara Kuer. He thus up held the order of release in respect of one-third share in those three plots. These facts are supported by the documents referred to above.

(3.) The learned Additional subordinate Judge held in the present case that on account of the decree for maintenance obtained by Mosammat Jagesara Kuer in Title suit No. 110 of 1938, a charge was created by the decree on the aforesaid three plots which were now claimed to have been purchased by Sham Narain and others (the appellants). The decree was not fully satisfied and, hence, the auction purchase by Sham Narain in Execution case No. 972 of 1939 was affected by the principle of lis pendens embodied in Section 52 of the Transfer of Property Act and was not protected under the provision of Section 100 of the same Act.