BHAGLU MAHTO Vs. RAMAUTAR SAH

JUDGEMENT

(1.) The plaintiff-appellant was the purchaser at a rent execution sale of a holding of 7 bighas odd bearing survey khata No. 215 in village Gaibipur. In the Record of Rights the holding was entered in the names of Parayag Mahto and Pahlu Mahto. The heir of these recorded tenants was Dukhni, daughter of Pahlu. The village was in thika for a number of years to Gobind Sah. After his lease terminated the village was given in lease to Ramdeo Singh who was the tenure-holder and, therefore, the landlord of the holding in 1925. He sued for the rent impleading Musammat Dukhni and also impleading Ramautar Sah, the son and legal representative of Gobind, who was then dead, and alleging that the collection papers of the period of Gobind's thikadari were with Ramautar and that Ramdeo was unaware of any change in the holding as regards area or rental. The plaint contained a prayer that if Ramautar should disclose any such change the plaintiff might in due course be given permission to amend his plaint. Ramautar who was a minor entered appearance through his mother as guardian ad litem and her karpardaz Bhular Sah. The written statement denied that the collection papers were with him. No disclosure was made in this written statement as to any change in the area or rental of the holding in suit.

(2.) The suit was decreed and on execution the entire holding was sold on May 10, 1926, to Bhaglu Mahto who was not a, party to the suit. Delivery of possession followed. In 1929 there were criminal proceedings; Bhaglu prosecuted Bhular Sah, alleging theft of the crop from plot No. 2282. The case ended on April 4, 1929, in acquittal of the accused. On May 8, 1930, the present suit was instituted by Bhaglu claiming recovery of possession of the land from which he had been dispossessed as a result of the removal of crop and criminal proceedings and for mesne profits. The defence was that Gobind had bought plots Nos. 2282 and 3308 having an area of 1 bigha 2 kathas by a sale-deed dated 1899 from Pahlu, one of the recorded tenants; that he had got mutation of his name, that the land was, therefore, not part of the holding and that no title passed to the plaintiff by his auction sale. Regarding the rent suit decree and auction-sale it was said that these were fraudulent and collusive and the defendant was not bound by them. The Courts below agreed in holding that the rent suit decree and sale proceedings were neither fraudulent nor collusive, but have held that they were not binding on the defendants because defendant's father had purchased the plots in dispute and had been recognized by the landlord. The defendant Ramautar had, therefore, a good defence to put forward in the rent suit. But this defence was not put forward through gross negligence of his guardian.

(3.) In second appeal it is contended that plaintiff by his auction-purchase got a perfect title which the defendant cannot impeach. The suit was by the sixteen annas landlord and the decree was a rent decree. In such a case Section 158-B, Bengal Tenancy Act, declares that the holding shall pass to the purchaser, and Section 65, Civil Procedure Code, declares that where immovable property is sold in execution of a decree, and such sale has become absolute, the property shall be deemed to be vested in the purchaser from the time when the property was sold. It would be flying in the face of these provisions to hold that the property did not vest in the purchaser Bhaglu. The Code itself provides remedies for a person whose property is in danger of being wrongfully sold on a decree by which he is not bound. He can prefer a claim under Order XXI, Rule 58. If his possession is disturbed he can apply under Order XXI, Rule 100; he can institute a suit to declare his title and obtain a temporary injunction under Order XXXIX, Rule 1, if his property is in danger of being wrongfully sold. Ramautar did none of these things.