GOBINDA CHANDRA GOPE Vs. AKHIL CHANDRA DAS

JUDGEMENT

(1.) This is an appeal from the decision of the learned Additional Subordinate Judge of Faridpur, which confirmed the decree of the First Court, whereby the plaintiffs were given a decree for declaration of their title by auction purchase in respect of the lands described in the schedule of the plaint, and that the plaintiffs should recover khas possession thereof as against all the defendants and that the terms of the solenamah between the plaintiffs and defendants Nos. 1 and 2 be embodied in the decree except in regard to costs.

(2.) In this case, the appeal is by defendants Nos. 5, 6 and 7 only. Defendants Nos. 1 and 2 agree to the decree against them. It is not necessary for me to go through all the facts of this case as they are stated in the judgments of the Courts below. In order to make my judgment intelligible it is necessary to state one or two facts. Defendants NOS. 5, 6 and 7 were mortgagees holding a mortgage executed in their favour by defendant No. 1 only. At a subsequent date--the exact date is to my mind significant, namely, the 13 of January 1910-- it is alleged that by an oral agreement the mortgaged property was sold by defendants Nos. 1 and 2 to defendants Nos. 5, 6 and 7. The reason why I say the 13 of January 1910 is significant is that on the very next day, i e., the 14 of January 1910, the plaintiffs instituted a suit for recovery of money against defendants Nos. 1 and 2 and the lower Courts have apparently held that on the 13 of January 1910, defendants Nos. 1 and 2 were apprehensive of the suit which was filed on the following day by the plaintiffs. On the 16 of February 1910 an application was made by these defendants Nos. 5, 6 and 7 for mutation of their names, the Government being the landlord, and on the 17 of March 1910 an order for mutation of their names was made. In May 1911, the plaintiffs obtained their decree against defendants Nos. 1 and 2. In August 1912 the property was sold by auction in execution of that decree and it was bought by the plaintiffs. On the 20 of January 1913 the plaintiffs, obtained symbolical possession. They applied shortly afterwards to have their names inserted in the records instead of the defendants. That application was refused. In September 1913 they granted a burga lease to the first and second defendants which came to an end in September 1914, and the plaintiffs on the 27 of January 1916 brought this suit, claiming that a decree should be passed in their favour awarding them khas possession by evicting therefrom the defendants after a declaration that the temporary korfa projai right without right of occupancy, which the defendants Nos. 1 and 2 had under the plaintiffs in the land purchased by the plaintiffs at auction sale, had been destroyed after the expiration of the month of Pous and that the defendant No. 3 had never any right or ownership in the said lands.

(3.) The first point, that is taken on behalf of the appellants, is the main point, namely, that the learned Judge in the lower Appellate Court was wrong in holding that the plaintiffs obtained good title to this land by their auction-purchase in 1912, It was pointed out to the learned Vakil during the argument that that depended in the main upon the Question whether the alleged verbal sale of the 13 of January 1910 was a valid sale passing the property from defendants Nos. 1 and 2 to defendants Nos. 5,6 and 7. The learned Vakil agreed that this was so, subject to the further point that there was the question whether the holding was a transferable one. I may dispose of the latter question at once, It appears that in the First Court there was a finding of fact that the holding was transferable; and, in my judgment, it is clear that that question was not contested in the lower Appellate Court; and consequently that cannot be raised in second appeal: and, this appeal must be decided upon the assumption that the holding was transferable.