RAJIBNATH MUKHERJEE Vs. CHOTA NAGPUR BANKING ASSOCIATION LTD

JUDGEMENT

(1.) This is a pltf's. appeal in a suit for a declaration of his raiyati right & for recovery of possession in respect of lands appertaining to khatas Nos. 50 & 210 in village khirgaon, police-station Hazaribagh, dist. Hazaribagh, & for confirmation of possession or, in the alternative, for recovery or possession of the lands appertaining to khata No. 51 of the same village.

(2.) The facts, out of which cause of action for the suit arose, are that the disputed lands appertaining to khatas 50 & 51 were recorded as raiyati in the names of Narendra Nath Mukherjee, Lokendra Nath Mukberjee, Adhendra Nath Mukherjee, Dijendra Nath Mukherjee Harendranath Mukherjee & Parendra Nath Mukherjee, all sons of late Rai Bahadur Jadunath Mukherjee, & that all the survey plots except No. 860 of khata No. 210 were all along their raiyati lands. Late Jadunath Mukherjee had acquired these lands from khas mahal by settlement. The aforesaid recorded tenants mortgaged all the raiyati lands in the aforesaid three khatas of the village along with other properties with the deft. Chotanagpur Banking Assocn. Ltd., in the year 1914. As the mtge. debts could not be liquidated, the deft. Bank enforced the mtge. in Suit No. 48 of 1925. The mortgaged properties were sold to the deft.-Bank in execution of the mtge. decree. They got delivery of possession on 1-8-1936. The deft. apprehending futility of the auction sale which was held in contravention of the provisions of Section 41, Chota Nagpur Tenancy Act, persuaded the mtgor-judgment debtors & their heirs to surrender the lands appertaining to khata No. 50 to the khas mahal (landlord) giving them to understand that the deft. would give them receipt of acquittance of all the debts outstanding against them. The petn. for surrender filed under the persuasion, however, was rejected by the khas mahal officer. Later, on 5-9 38 another petn. of surrender was filed by the aforesaid mtgorg. & their representatives excepting Parendra Nath Mukherjee, the pltf.'s father. The latter filed an objection withdrawing from the petn. of surrender already filed. The objection, however, was overruled, in disregard of the fact that the pltf.'s father had by partition become owner of the entire lands in suit. Acting upon the petn. of surrender & considering that the original tenancy had come to an end, the lands were settled with the defts. & their names were mutated instead of the recorded tenants. The deft. thereupon dispossessed the pltf. from lands appertaining to khata No. 50 & raiyati portion of khata No. 210 & claimed title in himself in lands of khata No. 51 though the latter had never been sold at the execution sale. The deft. resisted the suit on the following grounds: that the lands of original khatas Nos. 50, 51 & 210 were sold on 8-2-36 in execution case No. 96 of 1934 of the Ct. of the Addl. Subordinate Judge at Hazaribagh in the aforesaid mtge. suit; that the entire mtge. land in village khirgaon formed a compact block lying within the boundaries: north--Kaeheha public road, south--bungalow of BabuMonindra Nath Mukherjee, east--municipal Road, west-lands of Chhakori Mistry, Mohan Naya & Jitu Mali; that the lands of khata No. 51 including the big tank lie within the aforesaid boundary & form the central portion of the entire land sold; that the defts. got possession through Ct. of all the lands, house & tank included in original khatas Nos. 50, 51 & 210; that the plts. as alleged, is not in possession of khata No. 51 & that the pltf. is debarred from maintaining a suit challenging the validity of the sale in favour of the deft. Bank as neither he nor his predecessor-in-interest raised the objection in execution of the decree under Section 47, C. P. C.

(3.) The learned trial Judge recorded the following findings: (1) that the lands in suit were not the raiyati lands of either Rai Bahadur Jadunath Mukherjee or his heirs, but that Eai Bahadur Jadunath Mukherjee & his heirs including the pltf. had all along permanent leasehold interest in them which were heritable & transferable & that in this view the sale in execution of the decree was binding against pltf. (2) that the mutation order of the Khas Mahal Officer in favour of the deft.-Bank & settlement of 8 plots of khata No. 50 with them are valid; (3) that the pltf.'s suit was noli barred by the provisions of s. 47, C. P. C.; & (4) that the sale in favour of the deft. included the lands appertaining to khata No. 51.