BHAGWAT NARAIN SINGH Vs. MAHADEO PRASAD BHAGAT

JUDGEMENT

(1.) This is a plaintiffs second appeal arising out of a suit instituted by him for a declaration that the sale of a certain mauza belonging to him in execution of a decree was void and for recovery of possession of that village. The facts of the case are briefly these:

(2.) The plaintiff's uncle Maharaja Nam Narain Singh had made khorposh grant of several villages including mauza Bandi to his (the plaintiff s) father Udit Narain Singh. After the death of Udit Narain Singn, his four sons, including the plaintiff, applied for protection of the estate under the Chota Nagpur Encumbered Estates Act and the estate was given such protection by an order dated 31 March 1896. In 1915 the estate was released to the plaintiff and his three brothers subject to the restrictions imposed by Section 12A, Chota Nagpur Encumbered Estates Act, as to future alienations of the whole or any part of the estate. The release was notified on 3 February 1915 and in the notification all the sons of Udit Narain, including the plaintiff, were described as the holders of the estate. It is common ground that the estate was impartible and that its devolution was governed by the rule of primogeniture; that in accordance with this rule the eldest brother of the plaintiff whose name was Bharath Narain Singh got possession of it, when it was released and though he allotted certain villages by way of khorposh to his younger brothers, he retained possession of most of the villages for himself including village Bandi. In 1924 Bharath died without leaving any issue and was succeeded by the plaintiff according to the custom prevailing in the family. In 1928 one Kali Prasad, who had obtained a decree against the plaintiff for costs and damages, put up village Bandi to auction in execution of the decree and the village was purchased by defendant 1 and the father-in-law of defendant 2 who got delivery of possession of it through Court in due course. The present suit was instituted by the plaintiff on 14 January 1937 to recover possession of Bandi. The plaintiff attacked the sale of the village to the defendants on the ground that it was held in contravention of Section 12A, Chota Nagpur Encumbered Estates Act, which enacts that when the possession and enjoyment of property is restored to the person who was the holder of such property when the application under Section 2 was made, such person shall not be competent without the previous sanction of the Commissioner to alienate such property or any part thereof in any way and every alienation made or attempted in contravention of this provision shall be void.

(3.) It appears that in execution proceedings while the sale of mauza Bandi was proceeding the plaintiff had objected to the sale under Section 47, Civil P.C., on the ground that the property could not be sold in view of the provisions of Section 12A. The executing Court proceeded with the sale but passed an order to the effect that the objection would be decided on a particular date. On that date the plaintiff did not appear and so his objection was dismissed for default and the sale was confirmed.