HARI BARMAN Vs. KHATIJAN

JUDGEMENT

(1.) We think this appeal ought to succeed. The plaintiff brought a suit for a declaration that the sale of the tenure at the instance of the landlord in execution of a decree for arrears of rent was brought about by fraud. The Defendant No. 6 purchased the holding at that sale. The plaintiff alleged that such a sale had affected prejudicially his right as a usufructuary mortgagee under a mortgage executed by the tenants in his favour in the year 1324, by virtue of which he had been in possession of the land in suit. The plaintiff, therefore, prayed for an order directing the sale to be set aside and also for a declaration to the effect that the sale was vitiated by fraud and, therefore, was of no effect so far as he was concerned.

(2.) The defence of the defendants, amongst others, raised the question that the plaintiff was not entitled to any relief on the ground that he had no interest in the holding as against the landlord.

(3.) The Court of first instance found that the sale was brought about by fraud and that the plaintiff, although he was not entitled to have the sale set aside, was entitled to a declaration that the sale was, so far as the plaintiff was concerned, ineffectual.