RAJJAB ALI KHAN Vs. BHUPATISH CHANDRA ROY CHUDHURY

JUDGEMENT

(1.) This appeal is on behalf of the defendants and it arises out of a suit commenced by the plaintiff for recovery of possession of the lands in suit on establishment of his title to the same. The lands in dispute consist of several C.S. plots situated partly in Mouza Goaldi and partly in Mouza Paikandi and they formerly be-longed to one Edon Molla who held them as an occupancy raiyat under two sets of landlords. The plaintiff Mahendra had 8 anna share in the superior interest, while the remaining 8 anna share belonged to Dakshina and Ramesh. In 1920 Mahendra instituted a rent suit against Edon Molla making his cosharers parties defendants. The suit was decreed and in execution of the same the holding was put up to sale and purchased by Mahendra himself on 20 July 1923. He obtained symbolical possession on 6 June 1926 but when he attempted to take actual possession of the lands he was resisted by the defendants which led to the institution of the present suit.

(2.) The suit was contested by defendants 10 and 13 only. Their case was that one Jahanara who was the predecessor of defendants 7 to 12 had purchased all the lands in suit with the exception of plots Nos. 368 and 451 of Mouza Goaldi in execution of a money decree against Edon Molla on 21 June 1923. The remaining two plots were purchased by defendant 13 in execution of another money decree obtained against Edon on 30 July 1919. As these purchases were earlier than that of Mahendra, the latter, it was contended, could not acquire any right against the defendants as his own purchase was in execution of a money decree and not a rent decree. The whole controversy practically centres round the point as to whether it was a money sale or rent sale at which Mahendra purchased the property. If it was a money sale the defendants would have undoubtedly prior rights, whereas if it was a rent sale, the holding itself would pass, and the interest, if any, of the previous purchasers would stand extinguished. Both the Courts below have decided this point in favour of the plaintiff and only some of the defendants have come up on appeal to this Court.

(3.) It is not disputed that the rent suit instituted by Mahendra in 1920 was in conformity with the provisions of Section 148A, Ben. Ten. Act, and the decree was consequently a rent decree. What is urged on behalf of the appellants is, that as no notice under Section 158B(2), Ben. Ten. Act, (which is now Sec. 148A (7) of the present Act) was served on the cosharer landlords, the sale which followed could not have the effect of a rent sale and it passed only the right, title and interest of the persons named as judgment-debtors. Both the Courts below have found in effect that no notice under Section 158B(2), Ben. Ten. Act, was actually served on the cosharer landlords but it is held that they received a notice in connexion with the execution proceedings which purported to be under Order 21, Rule 22, Civil P.C., and were in fact aware of the sale.