DAMODAR JHA Vs. MAHANGU JHA

JUDGEMENT

(1.) This a second appeal on behalf of the defendant-fourth-party from the decision of the learned Additional Subordinate Judge of Darbhanga modifying that of the Munsif of Madhubani in a suit in ejectment.

(2.) The plaintiff-respondents claimed the disputed lands, about 11 kathas and odd in area, by virtue of their several purchases between the years 1913 and 1921 from the family of the original tenants represented by the defendant-third-party. They alleged that the sale held on the 5th of June, 1936, in execution of a decree for rent obtained by the landlord-defendant, did not affect their interest, as they were not represented in the execution proceedings, and that, therefore, the auction sale only affected the right, title and interest of the judgment-debtors. The defendant-appellant, who is a settlee from the landlord, who was the auction-purchaser in execution of the decree and sale impugned in this case, alleged that the sale deeds relied upon by the plaintiffs were fraudulent and fictitious which did not convey any title to the plaintiffs; nor they obtained possession thereunder. They also alleged that the decree for rent obtained by the Raj Darbhanga, defendant-second-party, was a good rent decree, and the execution sale passed the holding itself. Hence, on these pleadings, only two questions arose for decision: first, whether the plaintiffs had acquired a good title by virtue of their sale deeds executed between the years 1913 and 1921 in respect of parcels of the holding of 11 kathas and odd held by the family of the defendant-third-party; and, secondly, whether the rent decree and the execution sale following thereupon had the effect of passing the holding itself or only the right, title and interest of the judgment-debtors.

(3.) The trial Court held that the sale deeds relied upon by the plaintiffs were genuine and real transactions which conveyed good title and possession as between the parties to those transactions; but it was admitted on behalf of the plaintiffs that there was another son of Sewak Ram named Lalji who did not figure as the vendor in the sale deeds relied upon by the plaintiffs, and his interest, being one fourth share, did not pass by those sales. The trial Court further held that, as a result of the amendment of Section 26 of the Bihar Tenancy Act, which came into force on the 10th of June, 1935, the plaintiffs' purchase must be deemed to have been recognised by the landlord, and, consequently, as they were not parties to the execution proceedings, their interests were not affected by the execution sale held at the instance of the landlord-decree-holder. In that view of the matter, the trial Court decreed the suit in respect of three quarters of the lands in dispute. From its decision, there was an appeal by the defendant-fourth-party, and a cross-objection by the plaintiff-respondents in respect of the one-fourth share of the lands in dispute which was not decreed in their favour by the trial Court. The lower appellate Court has decreed the entire suit, that is to say, it dismissed the appeal, and allowed the cross-objection, holding that, the defendant not having challenged the plaintiffs' title to the entire property in dispute by virtue of the sale deeds alleged by them, they were entitled, to recovery of possession in respect of the whole of the disputed lands. It also held, in agreement with the trial Court, that the amendment of the Bihar Tenancy Act, particularly Section 26N had the effect of making the plaintiffs 'raiyats' in respect of the disputed lands, and, as they were not parties to the execution proceedings, their interests could not have been affected by the execution sale in favour of the landlord, defendant-second-party. Hence this second appeal on behalf of the defendant-fourth-party who is at present interested in the holding as a settlee from the auction-purchaser, the Darbhanga Raj.