RAMPADARATH SINGH Vs. MAHANTH SAMPAT KUMAR

JUDGEMENT

(1.) This is an appeal by the plaintiffs, who brought the suit for declaration that 2 bighas 11 kathas and 1 dhur of land mentioned in Schedule B to the plaint, lying in village Garha, Police Station Runisainpur, District Muzaffarpur, were not liable to be attached and auction sold. This property was said to be sold in execution case No. 20 of 1956, which arose out of a decree passed in Title Suit No. 66 of 1953 in the court of the Subordinate Judge, Muzaffarpur.

(2.) The plaintiffs pleaded that they were not bound by the auction sale in its entirety, or, in any case, after the amendment of the plaint, it was mentioned that the plaintiffs were not bound by it at least to the extent of their three -fourth share. Plaintiff No. 1 was the Karta of the joint family - of the plaintiffs. Rambilas Singh, defendant second party, was brother of plaintiff No. 1 and had been living separately from the plaintiff, both in mess and property, since the year 1950. There was ill -feeling between Rambilas Singh and the plaintiffs' father, mother and the plaintiffs. In the circumstances, Rambilas Singh was separated from the family and there was a partition made by the panches by which the share of Rambilas Singh was set apart from the shares of the plaintiffs both in respect of Kasht and Bakast lands together with all family debts. But actually Rambilas did not get any immovable property in his share, and he was given in lieu Rs. 900/ - in cash and allowed to remain in the residential house, so long as he did not build his own separate house. By virtue of this partition, the plaintiffs were entitled to the entire family properties and hence the decree obtained by the defendant first party, Mahanth Sampat Kumar Dass, did not bind the other members of the family. The decree was obtained by the Mahanth in Title Suit No. 66 of 1953 in the court of the Additional Subordinate Judge, Muzaffarpur, against defendant Rambilas Singh, who was alleged to have looted away the idols of the temple and taken forcible possession of the temple, along with other persons. The Mahanth brought a suit for recovery of possession which was decreed on the 23rd of January, 1956, and that decree was being executed in respect of the decree for costs being a sum of Rs. 394.45 Paise. 2 Bighas 11 kathas 1 dhur of land, as mentioned in Schedule B to the plaint, were attached. Plaintiff No. 1 accordingly filed a petition under Order XXI, Rule 58 of the Code of Civil Procedure, in the executing court, which was numbered as Miscellaneous Judicial Case 4 of 1957. During the pendency of the proceeding, however, the suit land was auction sold on the 23rd March, 1957, and was purchased by the decree -holder himself for a consideration of Rs. 300/ - only. The Miscellaneous Judicial Case was also dismissed on the 4th December, 1957. It was further alleged that the plaintiffs, in any case, were not liable to pay any amount, in respect of the decree passed against Rambilas Singh, because that related to the criminal acts done by him. Hence a declaration was sought for in the reliefs prayed as aforesaid.

(3.) The defence case, apart from taking a plea in regard to the suit being not maintainable, substantially was that the defendant second party was joint in mess and property with the plaintiffs and he was the Karta of the family. All allegations regarding partition were unfounded. The defendant second party contested the title suit for the benefit of the family. The suit was brought in reality by Rambilas Singh himself in the name of the plaintiffs, in order to deprive the decree -holder -auction purchaser of the property purchased by him. The property sold was not worth more than Rs. 300/ -. Defendant No. 2 was, in fact, impleaded in title suit No. 66 of 1953 in the capacity of the manager of the family and hence the entire family was liable fur paying the decretal dues.