BABU TIRJUGI PRASAD SINGH Vs. PREMSUKH DAS

JUDGEMENT

(1.) This is a plaintiffs second appeal. The defendants first party in the suit were the landlords of a holding, of which the defendants second party were the tenants, and of which the plaintiffs had obtained a usufructuary mortgage in the year 1926.

(2.) In the year 1933 a suit was brought against the tenants by the landlords for rent of the years 1929 to 1933. A decree was obtained in June 1934, and in execution of that decree the holding was put up to sale, was sold in May 1936, and was purchased by the decree-holders, to whom possession was delivered on 5th January 1937.

(3.) The appellants brought the present suit for a declaration of their title as sudbharnadars and for recovery of possession alleging, first, that the decree and sale were vitiated by fraud, and secondly, that the decree amounted only to a money decree, that the sale in execution thereof passed only the right, title and interest of the judgment-debtors, and consequently, did not affect the title of the plaintiffs. It was contended that one of the landlords defendants, Basudeva Narayan, a minor, was not a plaintiff in the rent suit nor was he -a party to the application for execution. Hence the decree was not obtained by the entire body of landlords, and the entire body of landlords did not take out execution. Therefore, in accordance with the provisions of Section 158B, Bihar Tenancy Act, the holding did not pass. Further, it was contended that one of the tenants, a minor, by name Tanik, was not impleaded in the rent suit, and this also had the effect of preventing the decree being a rent decree.