RADHA GOBINDA DEB Vs. GIRIJA PRASANNA MOOKHERJEE

JUDGEMENT

(1.) This is an appeal by the plaintiffs from a decree dismissing their suit.

(2.) The plaintiffs are two brothers who, as well as their uncle defendant 2 are shebaits of their family idol Sree Radha Govinda Deb Thakur. One of the debutter properties of the idol is a 14 annas 2 gandas 2 karas share of an entire estate, No. 1246 of the Birbhum Collectorate, which goes by the name of Lot Kutubpur and includes thanadari lands. This share constitutes a separate account property being revenue-paying estate No. 1246/1. It was sold at a revenue sale held by the Collector of Birbhum on 28 March 1924 and purchased thereat by defendant 1. The shebaiti right of the two plaintiffs extends to a half of the said share and that of defendant 2 to the other half.

(3.) On 8 July 1925 the plaintiffs commenced this action on a plaint in which it was averred that there was bitter enmity and long-standing litigation between them and defendant 2; that estate No. 1246/1 having fallen into arrears for nonpayment of the revenue of the January kist of 1924 the estate was advertised for sale to be held on 27 March 1924; that on that date defendant 2 sent his officer Nimai Chandra Ghose to Suri, and the plaintiffs also sent their officer there with money for their share of the revenue; that Nimai Chandra Ghose gave out that he would pay the amount of revenue together with such penalty as the Collector might impose and also filed a petition for that purpose before the Collector; that the plaintiffs officer, believing that the revenue would be so paid in and finding that a chalan for such deposit had bean passed made over the plaintiffs share and the revenue to Nimai Chandra Ghose and came back;, and that thereafter Nimai Chandra Ghose having thus succeeded in misleading the plaintiffs officer and sent him away, did not deposit the revenue and fraudulently caused the estato to be pub up for sale on the next day and got it purchased for defendant 2 in the benami of the defendant 1. Certain irregularities and illegalities in the procedure adopted for the sale were also averred. It was also alleged that substantial loss was thus caused as property worth Rs. 50,000 had been sold up for Rupees 18,100 only. The prayers were for setting the sale aside on a declaration that it was illegal, ultra vires and without jurisdiction, and for recovery of possession of the estate together with mesne profits.