SURENDRA NATH BANDOPADHYA Vs. JABED ALI TALUKDAR

JUDGEMENT

(1.) --This is an appeal by the plaintiffs and it arises out of a suit for rent with regard to a howla which is situated within a taluk under a zamindari. The Defendants Nos. 1 and 2 are tenants of the howla. But the real question in dispute is between the plaintiffs and the Defendant No. 9 as to the title to the superior taluki interest which the plaintiffs claim. The Court of first instance passed a decree in favour of the plaintiffs. On appeal by the Defendants Nos. 1, 2 and 9 the decision of the Munsif was reversed by the Subordinate Judge and the suit has been dismissed. The plaintiffs appeal to this Court, and their contention is that on the facts found the plaintiffs are entitled to the rent claimed from the Defendants Nos. 1 and 2 and the Defendant No. 9 has not acquired the superior title in the taluks of the plaintiffs by virtue of his purchase of the taluki interest.

(2.) The facts stand thus:--There was a taluk called Abdul Kasim the owner of which was one Akimannessa Bibi. This taluk was under the zamindari of which there are several cosharers. The plaintiffs were the proprietors of the zemindari to the extent of one-anna odd share. They brought a suit for rent against the lady Akimanessa for their share of the rent of the taluk Abdul Kasim and put the taluk to sale and purchased it themselves on the 21 September 1909. One of the co-sharer of the zamindari was the Nawab of Dacca. In the year 1910 he brought a suit for the rent of the taluk Abdul Kasim and it appears that he purported to have framed his suit under Section 148-A of the Bengal Tenancy Act for the entire rent due on account of the taluk. The Nawab executed the decree and had the taluk sold. It was purchased by the Defendant No. 8 in the name of Defendant No. 7 and the Defendant No. 9 subsequently purchased it at a sale intervivos from Defendant No. 8.

(3.) The question in controversy turns upon the effect of the sale in execution of the Nawab's decree which was held on the 9 March 1911. It is contended on behalf of the plaintiffs that this sale did not affect the interest which he had purchased in 1909. On the other hand it is contended by Defendant No. 9 that the sale by the Nawab was under Section 158-B of the Bengal Tenancy Act and it is the entire interest in the taluk Abdul Kasim free from all incumbrances which was purchased by the auction-purchaser and therefore the plaintiffs had no title which would be effective as against the title of Defendant No. 9 under the auction sale of the 9 March 1911.