JABED ALI TALUKDAR Vs. SURENDRA NATH BANDOPADHYA

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a decision of Mr. Justice Bipin Behary Ghose, dated the 31 July 1924.... The appeal is by the defendants, Mr. Justice Ghose having reversed the decision of the lower appellate Court which was in favour of the defendants. The suit was brought for rent of a howla, and the facts are as follows: the respondents who are the plaintiffs in the suit claimed one anna and odd share in zamindari. In the zamindari there was a taluq Abdul Kasim and in the taluq there was a howla which was held by the tenant-defendants. As I have already stated the suit was a suit for rent of the plaintiffs share in howla. The plaintiffs story was that in the year 1906 they commenced a suit for rent of their share of the taluq, that they obtained a decree in that suit and that in the execution-proceedings they bought one anna odd share of the taluq. The sale was confirmed in the year 1913. Meantime on the 27 September 1909, one Golam Ali Choudhury had purchased a share in the zamindari. The purchase, however, was not registered until 19th August 1910 and before that date, namely, on the 15 April 1910, the Nawab of Dacca who was a cosharer in the zamindari commenced a suit for his share of the rent of the taluq. He made the other cosharers parties and consequently if all the co-sharers were on the record the decree which he had obtained on the 14 August 1910 was rent decree which could be executed as such, The Nawab of Dacca proceeded to execute his decree and in March 1911 the property was sold in execution of the rent-decree, if it was a rent-decree, in presence of the present plaintiffs as the Court have found. This sale was confirmed on the 24 May 1911. Now the position is that if all the cosharers were parties to the Nawab's suit and had also notice of the execution proceedings the sale of the appealing defendants would be free from any incumbrance in favour of the plaintiffs by virtue of their purchase in 1909.

(2.) Five points have been raised before us in this appeal. It is stated that Mr. Justice Ghose was wrong in holding that Golam was a proprietor. Mr. Justice Ghose so held, and the result is that if this finding is correct the sale in execution of the Nawab's decree was not a sale free from encumbrance. We think that the decision of Mr. Justice Ghose on this point is correct and that Golam was a proprietor by virtue of his purchase and that the sale in execution was not a sale free from all encumbrances. This also disposes of the second point that if Golam was the proprietor then as he was not registered until 19 August 1910, he was not a necessary party. I agree with Mr. Justice Ghose's conclusion that he was a necessary party as he was the owner from the date of his purchase.

(3.) Thirdly, it was urged that if Golam was a necessary party he was sufficiently represented by his izaradar who, according to the finding of the Subordinate Judge was the father of Surendra Nath Banerjee and who according to the same finding was on the record in the Nawab's suit both as a cosharer in the zamindari and as an izaradar. We agree with Mr. Justice Ghose that Golam was not sufficiently represented by his ijaradar and that the matter is not cured by this.