GOBIND RAM SANCHAITI Vs. RAM KISHORE CHOUDHARI

JUDGEMENT

(1.) This is a defendants' second appeal arising out of a suit in which the plaintiffs have sought declaration of title and confirmation of possession with regard to 3.42 acres of land recorded in khata No. 52 and situate in village Pothia, Pargana Sultanpur, and, in the alternative, have claimed reimbursement. The plaintiffs, claim to have purchased the lands in question under two sale deeds, one of which had been executed on 7-2-1940 and the other on 28-7-1943. As a purchaser under the sale deed dated 7-2-1940, the plaintiffs had to redeem a sudbharna bond dated 7-2-1929, and, as a purchaser under the sale deed dated 28-7-1943, they had to redeem a sudbharna bond dated 21-3-1930. The sudbharna bond dated 7-2-1929 was redeemed on 4th of Chait, 1945, corresponding to 18-3-1938, and the sudbharna bond dated 21-3-1940 was redeemed on 13th of Asarh 1351, corresponding to 27-6-1944. The plaintiffs filed the suit on 7-12-1944, and their allegation was that the defendants first party, who are the appellants before us had threatened to dispossess them as purchasers of the lands in execution of a money decree. These appellants had purchased the lands in suit along with certain other lands in execution of a money decree against the defendants second party on 10-8-1935, and, after the auction-purchase, possession had been delivered to them by an order of the Court. The defendants second party later on executed the sale deeds on the basis of which the plaintiffs are now claiming this property. After the plaint had been filed the plaintiffs, by a petition of amendment, made an alternatiye claim for the recovery of the amount which had been paid by them towards the satisfaction of the two sudbharna bonds.

(2.) The defendants first party contested the suit, and their contention was that the plaintiffs were not entitled to recover possession of the property in suit inasmuch as the kebalas in their favour had been executed subsequent to the auction sale. They also resisted the plaintiffs' claim for money on the ground that the payment, if any was a voluntary and a gratuitous payment.

(3.) Both the courts below dismissed the plaintiffs' claim for recovery of possession of the lands in suit, and the court of first instance was further of the opinion that the plaintiffs were not entitled to recover the amount which they had paid towards the satisfaction of the sudbharna bonds. The lower appellate court, however, held that as the defendants first party had enjoyed the benefit of the payment made by the plaintiffs, they were liable to reimburse the plaintiffs.