PREMSUKH DAS Vs. SATYANARAIN SINGH

JUDGEMENT

(1.) This appeal which arises out of a suit under Order21, Rule 63, Civil P. C, is by the defendants first party. The subject-matter in dispute is four annas share in a holding of 72.37 acres which admittedly belonged to four persons Bansi, Lakshmi, Khe-yali and Ganga in equal shares. The plaintiffs claim to have purchased the entire interest of these four in the holding on 10 May 1935 at a certificate sale for arrears of rent of the holding. Previous to this, however, the 12 annas interest of Bansi, Kheyali and Ganga had been purchased from them by Sureswar Singh and some others under private sale. In 1936 these purchasers Sureswar and others brought a suit (Title suit No. 10 of 1936) against the plaintiffs, also impleading as defendants the present defendants-second party, who are heirs of Lakshmi, deceased, for possession of their purchased 12 annas share on a declaration that the plaintiffs acquired no title to the same under the certificate sale, being farzidars of the certificate-debtors. This suit was decreed on 12th August 1939, but on appeal to the High Court, the parties entered into a compromise.

(2.) In the meantime in November 1935, the defendants first party obtained a money decree for Rs. 7751 against the defendants second party, the heirs of Lakshmi who was then dead. In 1937 the defendants first party took out execution of this decree against the defendants second party and attached their four annas share, now in dispute, in the aforesaid holding. The plaintiffs preferred a claim under Order 21, Rule 58, Civil P. C, which was allowed on 17 January 1938. The defendants first party then allowed their execution case to be dismissed for default. Subsequently, in 1939, they started a fresh execution in which they again attached the disputed four annas share. The plaintiffs again preferred a claim under Order 21, Rule 58, but it was dismissed for default on 2 March, 1940 when plaintiff 1 Satyanarayan Singh, who is the father of the remaining two plaintiffs who are minors, was in jail. The disputed property was sold on 6 March 1940. The plaintiffs then instituted the present suit under Order 21, Rule 63 on 15 May 1940. They base their title to the disputed four annas share on the certificate sale of 10 May 1935. The suit was contested by the defendants first party, substantially on the groundsthat the purchase at the certificate sale was a benami purchase made by the defendants second party in the name of the plaintiffs who are their close relations; and, therefore, the plaintiffs did not acquire any title under that purchase, and that the decision in the title Suit No. 10 of 1936, in which it was held that the plaintiffs were farzidars of the certificate-debtors, operates as res judicata.

(3.) The learned Munsif who tried the suit held that the decision in Title Suit No. 10 of 1936 does not operate as res judicata, but he upheld the defendants contention that the plaintiffs were mere farzidars of the defendants second party and did not, therefore, acquire any title to the disputed property under the certificate sale. He, however, held that the defendants first party not having filed any suit under Order 21, Rule 63 to set aside the order dated 17 January 1938 allowing the plaintiffs claim under Order 21, Rule 58, that order became conclusive between the parties with the result that the defendants were debarred from challenging the plaintiffs title to the: disputed property. In this, view the Munsif decreed the suit.