BANBIHARI KAPUR Vs. KHETRA PAL SINGH ROY

JUDGEMENT

(1.) One Ballav Lal Barman was the holder of a permanent tenure under defendant No. 1 and his predecessor in interest. In 1857 Ballav Lal executed a kabala in respect of this tenure in favour of his wife Radhamani. Ballav Lal, however, continued as the registered tenant until his death in 1891 or thereabout. He was succeeded by his grandson Shyama Prosad who was a minor at the time living under the guardianship of his grand-mother Radhamani and mother Kali Moti. The collections in the moffusil were made in the name of Radhamani and she mortgaged the "tenure to the plaintiffs on the 7th December, 1894, for Rs. 1,499. About three weeks after this on the 28th December, 1894, defendant No. 1 took from Radhamani a kistbandy bond for the arrears due on the tenure. Jo this document Radhamani described her title under the purchase of 1857, and it can hardly be argued that the effect of the acceptance of that document was not to recognise Radhamani as the tea-1 ant of the mehal. On the 37th May, 1896, Radhamani executed another mortgage of the tenure in favour of the plaintiffs who brought a suit upon the two mortgages against Shyama Prosad as heir and grandson of Radhamani and in possession., of her estate and obtained an ex parte decree on the 26th February 1902. Defendant No. 1 in April 1902, brought a suit for arrears of rent against Shyama Prosad stating that Ballav Lai was the recorded tenant and Shyama Prosad was in possession of the tenure, and obtained an ex parte decree on the 21st June, 1902. The plaintiffs executed their mortgage decree and purchased the mortgaged property on the 15th September, 1903, for Rs. 3,600. Defendant No. 1 executed his, rent-decree and himself purchased the property in arrear on" the 9th February, 1904, for Rs. 800. The plaintiffs applied for setting aside the sale on the ground of fraud and irregularities, but were not successful. They bring the present .0|?t on the ground that the decree itself was fraudulent as well as the sale, and pray for recovery of has possession on the declaration that their rights were not affected by the Sale.

(2.) The Lower Court has given the plaintiffs a decree holding that the decree for rent was fraudulent and collusive. Defendant No. 1 has appealed, and on his behalf it has been contended that the finding of fraud is not supported by the evidence in the case. It is quite clear that the findings of fact arrived at by the learned Judge do not make out any case of fraud against defendant No. 1. It is not alleged or shown that there was no arrear due on the tenure and there is no evidence that defendant No. 1 did anything in respect of the suit that he was not entitled to do under the law. It does not also appear that he had any duty to perform towards the plaintiffs the breach of which would throw any discredit upon him. We think the finding of fraud is wrong and must be set aside.

(3.) The decree of the Lower Court, however, has been supported ton the ground that the decree obtained by defendant No. 1 was not a rent decree under the Bengal Tenancy Act, and in any case the sale brought about by him was not in respect the tenure but only the right, title and interest of Shyama Prosad, so that their rights as purchasers under the mortgage decree were not affected. It has been further contended that the mortgage lien exists notwithstanding the sale, and as no notice under Section 167 of the Bengal Tenancy Act has been served, the Baja defendant No. 1, was not entitled to khas possession.