KUNJOLAL PAL Vs. IDURALI SARDAR

JUDGEMENT

(1.) This appeal arises out of a suit for partition brought by the plaintiffs in which they sought for the partition of a certain property on the allegation that they had purchased 10 annas odd gandas share in it. The property in question belonged to a Mahomedan family of whom the ancestor was one Hanif. The plaintiffs alleged that they had purchased the shares of two of the sons of Hanif, namely, Keshab and Sabdban. So far as regards the share of Sabdhan their case was that they obtained a decree against Sabdhan in 1918. In execution of this decree Sabdban's interest in the holding was sold and they themselves purchased it at the sale. This sale was duly confirmed on the 18 February 1919. With regard to Keshab's share, to which also this appeal relates, their case was that they purchased the share of Keshab from his heirs on the 19 September 1919. The defendants denied the plaintiffs title. They denied that the plaintiffs had ever purchased the land. They further claimed that they were entitled to buy Sabdhan's share by virtue of pre-emption.

(2.) The first Court decreed the plaintiffs suit to the extent of 7 annas 17-20/21 gandas. On appeal the plaintiffs suit was entirely dismissed. The learned Subordinate Judge held that on account of certain irregularities the sale by which the plaintiffs purchased the property of Sabdhan is neither legal nor valid and that the plaintiffs had not acquired any title under it. So far as regards the share of Keshab the learned Subordinate Judge held that the document by which the plaintiffs purported to purchase the property from the heirs of Keshab was a collusive document and that the plaintiffs did not succeed in proving that they had purchased the share of Keshab.

(3.) In appeal Mr. Mitter has urged on behalf of the plaintiffs-appellants that it is not open to the defendants who are third parties to raise the question of irregluarity in the sale. He contends that the only person who could raise the question would be either the decree-holder or a person whose interest was affected by the sale, that these persons could only raise the question under the provisions of Order 21, Rule 90, Civil P.C. This contention, I think, is correct. So far as regards the third party it is not open to them to challenge the validity of the sale. It is not contended for the respondents that the sale was void. The irregularities of which they complain were admittedly irregularities which might or might not render the sale voidable. But it would be voidable only at the instance of the judgment-debtor whose interests were affected by the sale and the judgment-debtor alone could get the sale set aside if he succeeded in proving that he had suffered substantial loss by reason of the irregularities. The irregularities, if there were any, were cured by the certificate of sale. To succeed in their defence the respondents must be able to set aside the sale. If they cannot set aside the sale the title of the plaintiffs is perfectly good title. I am, therefore, of opinion that it would not be open to the defendants to raise the defence that the sale would not be a valid one on account of irregularities; and so far as regards the property which the plaintiffs acquired from Sabdhan the appeal must succeed.