JAGGARNATH SINGH Vs. BUTTO KRISHTO RAY

JUDGEMENT

(1.) This appeal has been filed by the defendants in a suit in which the plaintiff- respondent has been granted a decree for a declaration of his title to village Chainpur with recovery of possession together with mesne profits. There is a cross-objection by the plaintiff-respondent relating to the period for which mesne profits hate been allowed.

(2.) Village Chainpur admittedly belonged at one time to what is known as the Palganj Estate. Appellant 1 is the present holder of that estate, but his estate is managed under the Encumbered Estates Act and he id, therefore, sued through the Manager of the encumbered estates who is himself appellant 2. The Province of Bihar is appellant 3. The previous holder of the Palganj Estate was Raja Bahadur Singh, father of appellant 1, hereinafter referred to as the Raja. On 17-2-1930, village Chainpur was sold in execution of a decree obtained against the Raja by Akshoy Krishna Trigunait and a sum of Rs. 6050 was realised, the property being knocked in the name of Rameshwar Lall. The plaintiff-respondent obtained from Rameshwar Lall a sale deed in respect of the property dated 27-11-1931, for a consideration of Rs. 7250. Further attestations of the executant's signature on the sale deed were made next day, 28-11-1981, and on the latter date the plaintiff executed an agreement in favour of the Raja whereby he agreed to convey the village to the Raja within three years on certain terms. This document was not registered until 21-3-1932, but meanwhile on 28-114931, the plaintiff had executed a second agreement in favour of the Raja promising to get the agreement for sale executed. It is also undisputed that after the transactions of 27 November 1931 and 28 November 1931, the plaintiff was given possession of the village Chainpur and remained in possession until 10 December 1940, when possession was delivered to the Manager of the encumbered estates in accordance with an order of the Deputy Commissioner of Hazaribagh dated 1-11- 1941. The plaintiff-respondent unsuccessfully moved the Board of Revenue to reverse the order of the Deputy Commissioner and then, brought the present suit.

(3.) The main case for the defendant-appellants is that Rameshwar Lall was a benamidar for the Raja both at the time of his purchase in execution on 17th February 1930 and at the time he executed the sale deed in favour of the plaintiff- respondent on 27 November 1931; that the sale deed just mentioned, together with the agreement executed by the plaintiff-respondent in favour of the Raja on 28 November 1931 to convey the village to him within three years taken together amounted to a mortgage by conditional sale, and that, therefore, the manager of the encumbered estates had lawfully taken possession of the village and had lawfully removed the plaintiff-respondent as mortgagee or conditional vendee under Section 16, Chota Nagpur Encumbered Estates Act, 1876. It was in accordance with this case of the defendant-appellants that the order of the Deputy Commissioner dated 1 November 1941 was passed and that order was upheld by the Board of Revenue.