AHMED ALI Vs. ROSHAN ALI

JUDGEMENT

(1.) This was a suit for recovery of khas possession of certain land which originally formed the holding of one Amjad Ali. This holding, which was not transferable, had nevertheless been sold to the first defendant. The plaintiffs-landlords brought a suit for rent, obtained a decree, and, in execution sold the holding. Thereafter, the first defendant deposited the purchase-money and the sale was set asides Subsequently, the plaintiffs brought this suit on the ground that, the holding not being transferable, they were entitled to khas possession. The evidence appears to be somewhat meagre and the findings of the learned Subordinate Judge on the questions of fact arising in the case are by no means so full as might be desired. In the circumstances, I assume that he accepts the findings of fact arrived at by the Munsif which are sufficient for the purpose of this case.

(2.) It is admitted by both sides before me that the deposit purported to be made by the first defendant under Section 310A, Civil Procedure Code. It has been found by the Munsif that the plaintiffs withdrew the money knowing the real circumstances of the case. The order by which the sale was set aside recites that the decretal amount had been deposited by the judgment- debtor. The Munsif says that this was a clerical mistake which could not have the effect of misleading the plaintiff in any way. The facts then to which the law is to be applied are that the land-lords had sold the holding in execution of a rent decree, that the first defendant who was a purchaser of this holding deposited the purchase- money and that the landlords knowing who he was agreed to the sale being set aside on that deposit. I may say, in passing, that the learned Subordinate Judge s remark that the estoppel of the plaintiffs was based on the fact that they withdrew the money appears to have been made on a misapprehension, The money was not actually withdrawn by the plaintiffs until after the institution of the present suit.

(3.) Both the Courts below held that the plaintiffs were estopped from questioning the purchase by the first defendant, relying on the case of Thomas Barclay v. Syed Hussain Ali Khan 6 C.L.J. 601.