HARA PRASAD GAIN Vs. GOPAL CHANDRA GAIN

JUDGEMENT

(1.) These appeals arise out of a suit by the appellants for recovery of possession of one-half share of the plaint lands on declaration of their alleged title therein and setting aside the sales of the properties under the Public Demands Recovery Act (3 of 1913, B.C.). It will be necessary to mention a few dates in order to understand fully the contentions raised by the parties in these cases. The properties are four in number, and are described in Schedules ka, kha, ga and gha of the plaint. The Schedule ka. property was sold under a certificate issued by the certificate officer under the Public Demands Recovery Act and purchased by Defendant No. 1 on the 28tb October 1918. The sale was confirmed on the 3 January 1919 and delivery of possession was given to the purchaser on the 23 August 1919. The sale of "kha" property was held on the 23 December 1918 and confirmed on the 24 February 1919 and delivery of possession made to the purchasers, Defendants Nos. 2 and 3, on the 1 September 1919. "Ga" property was sold on the 28 October 1918 and the sale was confirmed on the 3rd January 1919 and delivery made to the purchasers, Defendants Nos. 2 and 3, on the 1st November 1919. The sale of gha property was held on the 2 December, 1918 and confirmed on the 3 February 1919 and delivery of possession given to the purchaser, Defendant No. 1, on the 1 September 1919.

(2.) The plaintiffs based their title on a mortgage executed by Defendants Nos. 5 to 15 who had an eight-annas share in the properties in favour of the plaintiffs in December 1903. A suit upon the mortgage was brought by the plaintiffs in 1917 and a decree for foreclosure was passed in favour of the plaintiffs on the 8 March 1919. The other eight annas share was also mortgaged by the owners thereof (to Defendant No. 1 who obtained a decree on it and in execution thereof purchased the property. It is not necessary to consider it as it is not in controversy in these cases.

(3.) The Subordinate Judge in the trial Court held that the sales were not liable to be set aside but as he found that they were vitiated by fraud he held that they were not binding on the plaintiffs and did not affect the plaintiff's eight-annas share in the property. The defendants appealed and the learned District Judge was of opinion that the plaintiffs had failed to prove fraud and that the sales were not liable to be safe aside on the ground of irregularities mentioned by the plaintiffs. In this view the learned Judge reversed the decision of the trial Court and dismissed the plaintiffs suits. Against these decrees these appeals have been preferred by the plaintiffs and various grounds have been urged on their behalf which will be noticed in the course of the judgment.