DALIP NARAYAN SINGH Vs. RASIK LAL CHAUDHRI

JUDGEMENT

(1.) The petitioners were first party in a Section 145 proceeding regarding lands comprised in Khata Nos. 164 and 166 in village Lauriha, P.S. Tarapur, in Monghyr District;. The area in dispute is 39.59 acres. The second party opposite party were admittedly the raiyats of this land before the transactions on which the petitioners base their claim of title. They claim to be still in possession as raiyats and the Magistrate has given effect to that contention. The petitioners held a mortgage from the opposite party over the disputed land on which they sued and got a decree for sale. The decree was executed, the property sold up and petitioner 1 purchased the property at the execution sale dated 16 May 1929. The sale was confirmed and writ of delivery of possession under Order 21, Rule 95, was issued by the Court. It is said that delivery was opposed on the spot on the part of the raiyats and was infructuous. The date of this is 17 July 1930.

(2.) A second writ of delivery of possession was issued and purports to have been duly executed on 4 October 1931 without any opposition on the part of the judgment-debtors. Meanwhile a rent suit was instituted by the landlord, the Baneli Raj, against the raiyats opposite party in which a decree was obtained and a portion of the holding only was put up for sale. It was sold to the landlord Baneli Raj and the sale was confirmed and sale certificate granted which bears date 28th January 1932. The petitioner being (according to his case) in possession, came to terms with the Baneli Raj in whose favour he executed a kabuliyat in respect of that part of the holding which had been sold in execution of the rent decree. The date of this kabuliyat is 24 September 1932. He was also, he claims, recognized as a tenant in respect of the remainder of the holding which had been sold in execution of his own mortgage decree; but had not been sold under the rent decree.

(3.) He paid a sum of Rs. 874-6-3 on account of arrears of rent and salami and according to his case remained in possession. He has paid rent for the year 1340 Fasli under receipts Exs. 3 and 4, the total payments being Rupees 370-13-3. Some lagits and seahas of the Baneli Raj are produced. Some accounts, Ex. 10 series, are produced to show expenditure on cultivation on behalf of the petitioner and are supported by cash book Ex. 11. The present proceedings started under the following circumstances: