ABDUL HAKIM GAZI Vs. PANCHI DASI

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff for recovery of possession of 13 plots of land measuring 20 lights 14 cottas on declaration of the plaintiff s right as auction- purchaser thereto. Three persons Arif, Khater and Dhari called Dwarika in the record had a jama of Rs. 24. This was split up by partition recognised by the landlords and the jama of Rs. 16 fell to Arif and Khater and one of Rs. 8 to Dwarika. The plaintiff purchased these jamas at sales in execution for their own rent brought by the malkis. He purchased the smaller jama on the 16th February 1903 and the larger jama on the 21st July 1903. The whole jama had been mortgaged by way of conditional sale to one Jadab Sirdar, defendant No. 16, we are told in 1885, but there is nothing in the paper-book to show this and in 1 903 the mortgagees sued the mortgagors and made the plaintiff a party. On the 5th May 1903, a solenamah was filed by all the mortgagors-defendants purporting to be also signed by the plaintiff. On the basis of this compromise the mortgaged property was put up to sale under a decree absolute made on the 9th April 1904, and purchased by the decree-holder at the auction sale. He sold the land to the defendant No. 1 by a private arrangement.

(2.) It has been found as a fact that the plaintiff did not sign the solenamah and was no party to the decree by consent. It is further found that the alleged signature of the plaintiff on the solenamah is a fraudulent imitation of his real signature and that the mortgagors incurred no liability under that decree, which had the effect of depriving the plaintiff of the property which he had purchased. The fraud was the fraud of the mortgagors. The Subordinate Judge has held that the plaintiff s title has not been affected by the sale and that he can recover.

(3.) The contentions of the defendant No. 1 in appeal are, first, that he is a bona fide purchaser for value under Section 53 of the Transfer of Property. Act and cannot be ejected, and secondly, that the plaintiff cannot succeed without having the consent decree set aside and this cannot be done in the absence of the mortgagors. If the defendant No. 16 had no title to sell, the plaintiff must look to him for remedy.