DAGULAL TILOKCHAND GANYRADE AND ANOTHER Vs. RAMESHWAR RAMKARAN

JUDGEMENT

(1.) THE defendant appeals. He is the lambardar and the plaintiff, who claims to be a 0-1-8 sharer in the village, sues him for his share of the village profits. The defence is that the plaintiff is not a cosharer and so has no right of suit. The plaintiff derives title through one Mumtaz Hussain and the crucial question here is whether Mumtaz Hussain had any title to a share in the village. According to the plaintiff Mumtaz Hussain obtained title at an auction sale. It is admitted that one Ghasiram and certain others had a 0-5-4 share in this village. A decree was obtained against them, and, according to the plaintiff 0-1-8 out of this 0-5-4 was put to sale find purchased by Mumtaz Hussain. The defendant denies this, and in order to understand his case it will be necessary to bear in mind that we are concerned with two villages in this case with names so alike that one can easily be mistaken for the other. One of these villages is Dedgaon Malguzari and the other is Dedgaon Circular. Ghasiram and the others had shares in both villages and shares in both were attached. The question is whether any share in Dedgaon Malguzari, which is the village in suit, was put up to sale and purchased.

(2.) THE plaintiff relies on the sale certificate, EX. P-2, which up to a point is in his favour. It sets out that a 0-1-8 share in Dedgaon was sold without specifying which Dedgaon. But while one part of the description tallies with Dedgaon Malguzari the other does not and it tallies exactly with that of Dedgaon Circular. The certificate runs as follows : "0-1-8 share of Mouza Dedgaon Tahsil Harda, jama Rs. 50-12-0, area 77.04, settlement No. 197." Here, the settlement number corresponds with Dedgaon Malguzari but not the jama and the rent. They correspond to Dedgaon Circular. Their Lordships of the Privy Council have held that the sale certificate is not conclusive. It affords only prima facie evidence of title and it can always be shown that the sale certificate is wrong even when there is no ambiguity in it. In their Lordships' case the wrong property was attached and put up for sale and their Lordships held that whether there is a mistake or not, if property A is attached and ordered to be sold, this cannot be read as an authority to sell property B which is not attached : seeThakur Barmha v. Jiban Ram (13) 41 Cal. 590 .

(3.) HAD a 0-1-8 share of Dedgaon Malguzari been intended the area and jama corresponding to such a share would have been about 100 acres and Rs. 69-6-0. So it is quite clear that what the Collector offered for sale and what was purchased was a 0-1-8 share in Dedgaon Circular. The other village was never put up for sale and was never purchased. The result is that Mumtaz Hussain obtained no title to any share in Dedgaon Malguzari and consequently the plaintiff has no title either. That means that the plaintiff is not a cosharer and so has no right to sue for mesne profits. The plaintiff's learned Counsel, however, contends that even if he has no title he can still sue because the rightful owner Ghasiram does not object and because he, the plaintiff, is in possession. He bases this on Ghasiram's statement as P.W. 3. Ghasiram there says that when he sued the defendant for village profits he gave up his claim to a 0-1-8 share in Dedgaon Malguzari because he found from the village papers that this had been purchased by Mumtaz Hussain. It is true the village papers, following the sale certificate, record Mumtaz Hussain, but that does not give him title nor does it vest him with a right of suit.