RAMU PAL Vs. PRAKASH CHANDRA SARMA PURKAYESTHA

JUDGEMENT

(1.) Two persons of the name of Nepal and Gopal owned an occupancy holding consisting of the disputed lands in this case. These two persons had also a proprietary right in the mauza in which these lands were situated. In execution of a money-decree against these two persons their occupancy holding was brought to sale and was purchased by the plaintiff. In the execution case Nepal and Gopal did not take any objection that the property was not saleable and could not, therefore, be sold. They kept silent and the property was sold and purchased by the plaintiff in 1896. In this case, it has been held by the learned Subordinate Judge that occupancy holdings are not saleable by the custom of the locality in which the disputed lands are situated. In the execution case in 1896 Nepal and Gopal should have objected both as raiyats and as landlords that the occupancy holding sought to be sold was not saleable and could not be sold. That was a matter concerning the satisfaction of the decree in execution, and could be raised under Section 244 of the old Code of Civil Procedure which was then extant. It was not so raised and the property was sold. Defendant No. 8, who is the purchaser of the proprietary share of Nepal and Gopal, now says that she is entitled to object to the sale to the plaintiff on the ground that the property was not saleable. The learned Subordinate Judge has held that it does not lie in the mouth of defendant No. 8 who has purchased the share of Nepal and Gopal to say that the property was not saleable, when her vendors had an opportunity of taking the said objection in the execution proceedings which terminated in the sale to the plaintiff.

(2.) It is contended in appeal before us that the learned Subordinate Judge is wrong in so holding. We do not think that this is so. It was open to the learned Subordinate Judge to decide upon the facts found in the case, whether or not defendant No. 8 who derived her title from Nepal and Gopal was estopped and it was decided that she was. On principle also, we think that the position of Nepal and Gopal as landlords and tenants could not be differentiated in the execution proceeding in that they were judgment-debtors in the money decree and their rights in the occupancy holding were going to be sold, and if they wanted to stand upon their rights as landlords to oppose the sale they should have done so. They could have done so both as raiyats and landlords, but they did not do that and the result was that the property was sold and the decree which was binding upon them was to the extent of the purchase-money satisfied. That purchase-money came from the plaintiff and it can now be said that if it were not for the conduct of Nepal and Gopal in not taking the objection to the sale, the plaintiff might not have made the purchase. In this view of the case the contention of the learned Vakil for the appellant fails.

(3.) The next contention is that upon the allegation of the plaintiff in this case, the plaintiff was dispossessed in 1904 and the Suit was brought in 1911, admittedly seven years after the dispossession.