ISWAR CHANDRA PAL Vs. KABIRUDDIN AHMED

JUDGEMENT

(1.) The facts which gave rise to the present litigation were briefly these: The plaintiffs who may be described as the Pals and two brothers Mahim Ghatak and Ramesh Ghatak and one Radharaman all got decrees against one Izzat Bux and when in an execution proceeding the property in suit which belonged to Izzat was put up to sale it was purchased in the name of Ramesh and Mahim alone in pursuance of an agreement that the property would belong to Mahim and Ramesh in 8 annas and to the Pals and Radharaman in 8 annas Mahim getting a 4 annas share, Ramesh another 4 annas share, the Pals 2/3rds of 8 annas and Radharaman l/3 of 8 annas the parties having contributed in these shares to the fund with which the property was purchased at the sale. This took place in the year 1915 and the parties were put in joint possession of the property in 1918. Thereafter Ramesh sold three-fourths of his share in the property to defendants 1 to 7 in the name of defendant 9 and one-fourth share to defendant 10 stating, however, in the Kobalas that were executed that his share in the property was 8 annas. On these facts the plaintiffs the Pals instituted the suit that has given rise to the present appeal for declaration of their title to a one-third share in the property (being 2/3 of ?) and for recovery of possession of the same after partition. Mahim Ghatak who was defendant 11 in the suit supported the plaintiffs case. The plaintiffs claim, however, was resisted by defendant 9 only none of the other defendants having filed any written statement in the case.

(2.) The main grounds on which the plaintiffs claim was resisted were two in number and the two grounds were: (1) that the suit was not maintainable in view of the provisions of Section 66, Civil P. C, the property having been purchased in the name of Mahim and Ramesh and Mahim and Ramesh having been the only certified purchasers; and (2) that defendant 9 having purchased a six annas share in the property from Ramesh who was the ostensible owner of one half of the property for value without notice of the rights of the other people he (defendant 9) was entitled to a six annas share Under Section 41, T. P. Act.

(3.) Both the Courts below found that the arrangement before the purchase at the auction-sale in 1915 has been as stated by the plaintiff, that is, that Mahim should get ? share, Ramesh ? share, the plaintiffs l/3 share and Radharaman l/6 share of the property and that they had contributed to the purchase money in these shares. The trial Judge held also that Section 66, Civil P. C., was no bar to the suit and holding in addition that defendant 9 was not a bona fide purchaser without notice found for the plaintiffs and made a preliminary decree for partition. Against that decision of the trial Judge, an appeal was taken by defendant 9 to the appellate Court and the learned District Judge set aside the decision of the Court of first instance and holding that Section 66 was a bar to the suit dismissed the suit in its entirety finding also at the same time that defendant 9 was a bona fide purchaser for value without notice. The plaintiffs are the appellants before us. The chief controversy before us had centred round the question as to the applicability or otherwise of Section 66 to the present case.