MOHAMMAD NAZIM KHAN Vs. RAMJIVAN SAHU

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge of Mazaffarpur after remand by this Court. It is necessary to notice what the claim was in the first place. The first relief claimed by the plaintiffs in their plaint was, that the land in suit was the khas land of the plaintiffs by purchase at auction and that the said Hira Raut was only the benamidar of the plaintiffs and that no right was or could be acquired in respect of the property in suit by virtue of the decree dated 26 January 1925 in suit No. 78 of 1924, which is entirely fraudulent, collusive and illegal.

(2.) The facts are these. In 1917 an ex parte decree was obtained by the landlord with regard to the holding in dispute. The holding was put up for sale and one Hira Raut purchased it at the execution sale on 19 September 1917. It was that Hira Raut who is claimed by the plaintiff to have been his benamidar. Prior to that in fact on 7 June 1905 one Sabab Khan purchased the holding from the tenants and the case has always been, at any rate that of the landlord, that the holding was a non-transferable holding and therefore Sabab Khan was not entitled to be recorded as tenant. In 1917 Sabab Khan brought a suit claiming declaration as to his title and possession as tenant. He made in that suit the landlord and Hira Raut, the purchaser in the execution case, defendants.

(3.) The case proceeded through the Courts up to the High Court and was dismissed. Then in 1924 the heirs Sabab Khan brought an action against Hira Raut. Exactly what the relief claimed was is not disclosed in this case. During the course of the action the matter was referred to arbitration and an award was eventually made by the arbitrators in favour of the contesting defendants, the present appellants, that is to say in favour of the plaintiffs in that action, the heirs of Sabab Khan. Delivery of possession was taken as a result of this award which was made a record of Court.