BANBIHARI KAPUR Vs. KHETRA PAL SINGH ROY

JUDGEMENT

(1.) One Ballav Lal barman was the holder of permanent tenure under defendant No. 1 and his predecessor-in-interest. In 1857 Bally Lal executed 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 mothewr Kali Moti. The collections in the Mofussil were made in the name of Radhamani and she mortgaged the tenure to the plaintiff 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 kihtbandy bond for the arrears due on the tenure. In 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 tenant of the mehnl. On the 27th May, 1896, Radhamani executed another mortgage of the tenure in favour of the plaintiffs who brought a suit upon the two mortgages against Sahyama 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 Lal 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, 1902, 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 suit on the ground that the decree itself was fraudulent as well as the sale, and pray for recovery of khas 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 decree for rent was fraudulent and collusive. Defendant No. 1 has appealed, and on his behalf it has been contended that the finding is note supported by the evidence in the case. It is quite 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 thrown 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 on 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 of the tenure by only the right, title and interest of Shyama Prosad, so that their tights 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 Raja, defendant No. 1, was not entitled to khas possession.