NIJIBAL ISLAM MOLLA Vs. GOLAM AFSAR MOLLA

JUDGEMENT

(1.) The plaintiff in the suit, in which this appeal has arisen, prayed for khas possession of the lands in suit, appertaining to a tenancy held at one time by Gandhari Bewa, predecessor-in- interest of defendants 2 and 3. According to the plaintiff, the lands appertaining to the tenancy were sold in execution of a rent decree obtained by him, in which defendant 1 in the present suit was made a defendant, as a co-sharer landlord, with a view to the plaintiff's obtaining an effective rent decree, in execution of which the tenancy could be sold. Defendant 1, it appears, obtained a kabula from Gandhari Bewa, the tenant, before the tenancy was put to sale in execution of the decree for rent obtained by the plaintiff against Gandhari Bewa. It further appears that a suit brought by defendant 1 for a declaration that the sale in execution of the decree for rent obtained by the plaintiff was not binding on him was dismissed. Defendant 1, however, succeeded in getting possession of the lands in suit, after they were sold in execution of the rent decree against the tenant Gandhari Bewa. The sale in execution of the decree in favour of the plaintiff, at which the plaintiff was the purchaser, was held on 16 July 1919, and it was confirmed on 4 September of that year.

(2.) The suit out of which this appeal has arisen was instituted by the plaintiff on 6 October 1928. In view of the question for consideration in this appeal by the plaintiff, whose suit has been dismissed by the Courts below, on the ground that Section 47, Civil P. C., was a bar to the same, it is not necessary to consider the defence of the contesting defendants in the suit, other than the one raised by defendant 1. The defence raised by this defendant was that the plaintiff as a decree-holder auction-purchaser should have come in under Section 47, Civil P. C., for possession of the lands in suit, and as such, the suit as instituted by the plaintiff was not maintainable.?

(3.) The Courts below have, on the authority of the decision of a Full Bench of this Court in Kailash Chandra V/s. Gopal Chandra AIR 1926 Cal 798, held that the question for determination in the present case was a question arising between parties to the suit for rent brought by the plaintiff, and was also a question arising between parties relating to the execution, discharge or satisfaction of the decree obtained by the plaintiff; and, as such, it was incumbent upon the plaintiff, the decree-holder auction-purchaser, to come in by a proceeding under Section 47, Civil P. C., for delivery of possession, and he not having done so, the suit, as instituted, was not maintainable, and was, in that view of the case, dismissed.