BHOLA MAHTON Vs. MTKUER DEI KUER

JUDGEMENT

(1.) This is an appeal from a decision of a learned Single Judge of this Court who has reversed the decision of the learned District Judge in the following circumstances:

(2.) The property of the tenant was put up to sale in 1939. The proceedings in execution of three rent decrees started in that year but the exact date is not clear from the record, but it is clear that the sale proclamation was issued on 9 March 1939. The actual sale was held on 17 May 1939. In that sale 82 acres of land forming a portion of Plot No. 359 appertaining to Khata No. 89 in village Pachaura was purchased jointly by three decree-holders. The delivery of possession was effected on 11 January 1940. It should be observed that between the date of the sale proclamation and the date of sale the Bihar Tenancy Act was amended on 26 April 1939 by which a new provision was inserted in the Act by Section 162A which expressly authorises the sale of a portion of a holding in circumstances prescribed in the section, but it was also enacted by proviso 2 that nothing in this Section shall be deemed to authorise the sale of a portion of a plot comprised in a holding. Before the rent decrees were obtained the raiyats had executed an ijara on 15 January 1919 of the holding including the plot in question in favour of the plaintiffs who were in possession as such. Another fact that, requires to be stated is that the plaintiffs have also acquired milkiat and tenancy rights of the tenant judgment-debtors by two sale-deeds dated 25 August 1939 and 7 October 1939. The plaintiffs, therefore, have two capacities, one as ijaradars and the other as transferees from the tenants. But, in the meantime, as I have already stated, the sale took place by which the landlords became the auction-purchasers of a portion of the plot on 17 May 1939.

(3.) Accordingly the plaintiffs instituted the suit giving rise to this appeal for setting aside the sale which was held on 17 May 1939 on the ground that it was obtained by means of fraud perpetrated on the Court or against the tenants and also for a declaration that the sale had merely the effect of conveying the right, title and interest of the judgment-debtors and for a consequential relief that the landlord auction-purchaser had no right to actual possession. They also sought for a confirmation of their possession.