ASGHAR ALI Vs. JASODA KUER

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the District Judge of Gaya, reversing in appeal, a decision of the Subordinate Judge of Gaya.

(2.) The suit was instituted to obtain a declaration that a certificate sale of certain mokarrari property was void ab initio. In dismissing the suit, the District Judge, besides other grounds, relied on the ground that the suit is barred Under the provisions of Section 45, Public Demands Recovery Act, 1914. Obviously this section has no application, as it relates to suits for the setting aside of certificate sales.

(3.) The suit property is a share of 4 annas and odd in a mokarrari tenure in village Murhera, tauzi No. 1755. The certificate was filed at the instance of the Maharaja of Darbhanga, the mortgagee of the proprietary interest in the village, for the recovery of arrears of rent of the entire mokarrari interest for the years 1344 to 1345 Fasli at the rate of ES. 1363 per year. During the course of the execution, of the certificate, one of the cosharers-mokarraridars, defendant 1, whose share is 7 annas and odd filed an application for accepting from him a fraction of the certificate dues proportional to his share and for exempting his share from being proceeded against. A similar petition was filed by another set of co-sharer Mokarraridars, defendants 3 to 7, who hold a share of 8 pies and odd. These two applications were agreed to by the certificate-holder and were allowed by the Certificate Officer by an order dated 29-5-1939. The execution of the certificate proceeded against the other certificate-debtors for the balance of the certificate dues and 7 annas and odd of the mokarrari tenure was sold on 31-7-1939, delivery of possession being taken by the purchaser defendant 1 on 24-1-1940. An application Under Section 29, Public Demands Recovery Act for setting aside the sale was filed by the plaintiff on 28-9-1939. It was allowed conditionally by the Certificate Officer, but was dismissed by the Collector in appeal.