GOPINATH BISWAS Vs. RADHA SHYAM PODDAR

JUDGEMENT

(1.) This appeal arises under the flowing circumstances:-- Lakhan was the holder of a separated 8-annas share of a Mokararitenure under Kailash Misra, the rent- free proprietor. Lakhan had two sons Goday and Becharam be interest of the latter being indented by his four sons. Kailash sued Goday and his nephew for arrears of rent of the 8 annas Mokarari in question; and a compromise decree was passed whereby it was agreed, that Goday's moiety interest should be separated off from the moiety of Becharam?s sons each being deemed an independent tenure. That decree is dated the 23 March 1889. In execution of the decree the 4-annas share belonging to Becharam's sons was put up for sale and was purchased on the 21 June 1890 by Surjya Naryan Gossain. Subsequently, Kailash sued Suriya Narain for arrears of rent, and in execution his 4-annas interest was purchased by the plaintiff on the 22 January, 1894.

(2.) The plaintiff brought this suit on the allegation that he had been put in possession by the Court in May 1894 and dispossessed by the defendants in the subsequent month of August.

(3.) The principal defendants, who are the appellants before us, had in April 1879 obtained a mortgage from three of Becharam's sons of their interest in this tenure and covered a mortgage-decree on the 4 September 1890 against two of those sons (neither Surjya Narain nor the plaintiff being made a party to the suit) and in execution thereof, on the 23 May 1894 themselves purchased the interest of those two sons representing one-fourth of the original 8 annas Mokarari tenure. The defendants pleaded that the plaintiff was not entitled to deprive them of the interest thus acquired because he had not annulled the in cumbrance in the manner and within the time required by law. They also contended that the rendered in execution of which the plaintiff purchase d the property was a decree in respect of only a share of the tenure, and had, therefore, only the effect of a money- decree, the sale in execution of which would pass no more than the right, title and interest of the judgment-debtor. Both the lower Courts have held that these pleas are invalid, and have given the plaintiff a decree. The same contentions are raised in the appeal before us.