PRATIVA NATH ROY Vs. BENODE BEHARI GHOSE

JUDGEMENT

(1.) This is an appeal by defendant 1 in a suit for a declaration that the plaint lands are not saleable in execution of a rent decree and for obtaining a perpetual injunction restraining defendant 1 from putting that land to sale in execution. The plaintiffs case briefly stated is as follows:

(2.) The disputed land previously belonged to the pro forma defendant 1 in tenancy right under Kumar Protiva Nath Roy, defendant 1. The latter in execution of a rent decree against the pro forma defendant 2 put the suit land to sale and one Jatin Saba purchased the same. The landlord again put the disputed land to sale in execution of a decree against Jatin Saha and this time Krishna Nath Ghose purchased the tenancy. Defendant 1 again put the suit land to sale in execution of a rent decree against Krishna Nath Ghose and plaintiff purchased the disputed land at that sale and took delivery of possession through Court: that thereafter defendant 1 brought a rent suit against the pro forma defendants 2 and 3, obtained a rent decree against them and is taking steps to put the disputed land to sale in execution of the said rent decree. Defendant 1, that is the appellant before me, resisted the claim of the plaintiff on the following grounds: (1) that in the settlement records which were prepared with the knowledge of the plaintiff, the names of the pro forma defendants were recorded with the knowledge and consent of the plaintiff; (2) that in the rent suit in which the rent decree in question was obtained the plaintiff made Tadbir on behalf of the pro forma defendants and deposed that Jatin Saha, Krishna Nath Ghose and the plaintiff were in fact the benamidars of the pro forma defendants, and (3) that the plaintiff was never in possession of any portion of the disputed land after his auction purchase.

(3.) The trial Court on a consideration of the evidence found that the plaintiff's title to the property was not at all affected by the sale. The trial Court found that the plaintiff did not know anything about the settlement operation. It was also found by the trial Court that the purchase in auction by the plaintiff was not a benami or mala fide one. The plaintiff's possession after the auction-purchase was also found. The trial Court also came to the conclusion that the conduct of defendant 1 in the rent suit in which the decree in question was obtained would go to show that defendant 1 himself was in collusion with the pro forma defendants 2 and 3. In this view of the matter the trial Court decreed the plaintiff's suit. On appeal the decree of the trial Court has been affirmed. Hence the present appeal by defendant 1.