RAMPRATAP MARWARI Vs. LACHMAN MISTRY

JUDGEMENT

(1.) It seems to me that both the Courts below have missed the real point which arises in this case. What that point is will appear from the following brief statement of the facts which have given rise to this appeal. The appellant has obtained a money decree against the respondent, and he seeks to attach and sell the interest of the respondent in certain property.

(2.) The property in question consists of survey plot No. 3 and portions of plots Nos. 4 and 6 with a house standing on them. These plots are entered in the raiyati khatian in the names of Purusottam Mahto and Madhu Mahto who are admittedly settled raiyats.

(3.) In the year 1904, one Rajani Kanta Banerji took settlement of some homestead lands including the lands in question from the father of Purusottam Mahto and Madhu Mahto by a patta (EX. C) for the purpose of building houses upon them. During the survey and settlement operations Rajani Kanta Banerji was entered as under-raiyat with occupancy rights under the settled raiyats. The appellant afterwards took oral settlement of the disputed lands from Rajani Kanta Banerji and constructed a house on them. It is stated by the Munsif in his judgment that the respondent-judgment-debtor had taken settlement from Rajani Kanta Banerji for purely residential purposes, and from his previous deposition in the money suit, it appears that he has built a pakka house on it and shops are held in that house. The question which arose in the Courts below was whether the house or shop and the interest which the respondent has in the disputed land are liable to be sold in execution of the money decree. What was contended on behalf of the judgment-debtor in the Courts below was that this property was not liable to be sold under the provisions of Secs.46 and 47, Chota Nagpur Tenancy Act.