TULSI RAM Vs. BADRI SINGH

JUDGEMENT

(1.) On the 20 of August, 1913, certain property in the village of Ghausganj Narayan was put up to auction. Badri Singh and Tulsi Ram bid on that occasion, and Tulsi Ram, asserting himself to be a co-sharer, capped each bid, as it was made, with a bid of a correspondingly equal sum, intending to exercise the preferential right which is accorded to a co-sharer under the provisions of Order XXI, Rule 88. Badri Singh was prepared to pay Rs. 160 for the plot. So also was Tulsi Ram. A report was made of these circumstances and, in due course, the matter came up before the Collector of Bareilly, on the 24 of October, 1913, for the confirmation of the sale. In none of the courts was the document, which we are now about to read, laid before the courts. Mr. Damodar Das has furnished to us a certified copy of the actual order of the Collector. It is evident from that document that Tulsi Ram had been served with a notice that the matter would be heard and determined on the 24 of October. Tulsi Ram was absent, and, in his absence, there was no evidence before the Collector as to whether his allegation that he was a co-sharer had or had not a foundation in fact, and the Collector passed an order that the sale was to be confirmed in favour of Badri Singh. The actual words are: "Present, Badri Singh in person. Tulsi Ram absent, despite due service of notice. The pre-emptor Tulsi Ram has failed to appear and prove his claim to pre-empt. Sale may be confirmed in favour of the purchaser Badri Singh." After that, the usual certificate of sale was issued to Badri Singh and mutation proceedings instituted and appropriate order made in favour of Badri Singh.

(2.) In 1915 Tulsi Ram brought a suit against Badri Singh to recover possession of this property. That suit was, however, withdrawn with liberty to Tulsi Ram, if so advised, to commence a new suit. Nothing whatever was done until the 26 of July, 1919, just within six years from the date of the order of the Collector. That suit also sought to get possession of the land which had formed the subject-matter of the sale by auction, and asked for a declaration that by virtue of a right of pre- emption according to law Tulsi Ram was the owner of the shares, and also that it might be declared that the sale certificate, the delivery of possession, and the mutation of names effected in favour of the defendant were ineffectual against the plaintiff's property and, further, asked that the defendant might be dispossessed and the plaintiff put into possession.

(3.) The question which has arisen is, whether that was a competent action to bring under the circumstances which we have already detailed.