NISAR MOHAMMAD KHAN Vs. TAUQUIR AHMAD

JUDGEMENT

(1.) These two appeals are by the plaintiffs and arise out of one suit instituted by them for a declaration, that a certain sale held on 16 April 1934, for recovery of arrears of cess did not affect their interest in village Ekamba, and for Recovery of possession of that share.

(2.) The facts necessary for understanding the questions raised may be shortly stated. The plaintiffs case is that they have title to the extent of 6 annas 10 dams and odd in village Ekamba, tauzi Ho. 6918, and in order to safeguard their interest, due to the deliberate default: of the other cosharers, they applied to the Collector on 26 June 1933, to open a separate account for them. On 16th September 1933, the office reported to the Deputy Collector that there was an arrear of Rs. 11-8-6 on account of cess and asked the applicants to pay their share; and on 17 October 1933, the applicants did not pay the entire arrears but only the amount due on account of cess for their shares. That being done on 7th November 1933, the Deputy Collector ordered that a separate account should be opened in the name of the applicants. These separate accounts were to take effect from January 1934.

(3.) In the meantime the estate was in arrears on account of cess due for the kist of January a March, 1933. Thereupon a certificate proceeding was started on 24 August 1933; in order to recover the arrears from all, the cosharers including the plaintiffs with-out serving notices in a proper manner as required by the Public Demands Recovery Act and without complying with some of its provisions the sale was; held in April, 1934. The plaintiffs having come to know of the sale instituted the present suit on 14 April 1936 challenging the entire sale as fraudulent.