MUHAMMAD ZAKARIA Vs. MUHAMMAD NURUL HAQUE

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit instituted by them for a declaration that they along with the defendants third party were in possession of the entire holding of one Kari Tanti as bharnadars under Section 171, Ben. Ten. Act, and that the plaintiffs could not be dispossessed of it and that they were entitled to retain possession and occupation thereof. The plaintiffs further wanted a declaration that an ex parte decree passed on 7 December 1926 in favour of the defendants first party was fraudulent and illegal, and they prayed for a permanent injunction against the defendants first party restraining them from executing the said decree, and they asked that the said ex parte decree may be set aside. Both the Courts below have dismissed the suit.

(2.) In order to understand the points raised in the case it is necessary to set out the facts shortly. One Kari Tanti had a holding of 3 bighas 17 kathas 12 dhurs in mauza Bhejbdih. The defendants first party and other persons were the proprietors of this village and the Jitwarpur Concern, represented by the defendant second party in the present suit, was the lessee of the village in respect of the shares of some of the co-sharers. In November 1905 Kari Tanti executed a Sudbharna deed in respect of 2 bighas 7 kathas 9 dhurs of his holding, in favour of Tajamul Hussain, the father of the plaintiffs. The defendants first party instituted a suit for rent against Kari Tanti and obtained a decree for rent under Section 148-A, Ben, Ten. Act. In execution of this decree the holding was sold in Execution Case No. 4l4 of 1915 on 11 January 1915 and was purchased by the defendants first party themselves, Tajamul Hussain, the subdharanadar, applied for setting aside the sale under Order 21, Rule 90, Civil P.C., and the sale was set aside on 21 December 1915.

(3.) Fresh execution of the decree was taken out by the defendants first party in Execution Case No. 91 of 1916. Tajamul Hussain thereupon deposited the decretal amount on 10 January 1917, apparently under the provisions of Section 170(3), Ben. Ten. Act, and on 31 January 1917 he was put in possession of the entire holding under the provisions of Section 171(1)(c) of the Act; and the plaintiffs still claim to be in possession as the heirs of Tajamul Hussain. It appears that thereafter the defendant second party representing some of the co-sharer landlords brought a suit for rent (Suit No. 445 of (1917) against Lila Tanti, the grandson and heir of Kari Tanti. A decree for rent was obtained on 6 June 1918 and in execution thereof (in Execution Case No. 686 of 1918) the holding was sold and purchased by the defendant fourth party on 19 July 1919.