GOBIND CHANDRA LAHA Vs. TARA PADA BHATTACHARJEE

JUDGEMENT

(1.) The only question raised in this appeal is whether the incumbrance of the defendants was annulled under Section 167 of the Bengal Tenancy Act.

(2.) The plaintiffs-appellants are patnidars of the mouzah in which the tank in dispute is situated and they purchased the darpatni at a sale held in execution of a decree for arrears of rent on the 22nd November, 1904. The defendants, who were sepatnidars and who claim to hold an incumbrance on the tank, applied to have the sale set aside on the 21st December 1904, which was, however, rejected on the 1st February, 1905, and sale was confirmed on the., 4th February, 1905. The purchasers obtained possession on the 22nd March 1905 and they applied under Section 167 of the Bengal Tenancy Act on the 10th January 1906. Notice under Section 167 was served on the 4th March, 1906, and the present suit was instituted on the 24th August 1906. Both the Courts below have held that the application under section. 167 having been made more than a year after the date of sale, the incumbrance was not annulled and accordingly dismissed the suit. The Courts below held that the words date of sale mean the date on which the sale actually takes place and not the date of the confirmation of the sale.

(3.) It may be pointed out that the learned Subordinate Judge is in error in stating that in the present case no objection seems to have been made to the sale itself.