PARBATI CHARAN DAS Vs. JAGDAMBA PRASAD SINHA

JUDGEMENT

(1.) This is a Letters Patent appeal against the decision of Manohar Lall J., in a second appeal arising out of a suit instituted by the plaintiff-respondents to recover possession of portions of plots Nos. 554, 556 and 553 which are situated in Mauzah Sisia Sheo Prasad. The suit was dismissed by the first two Courts but was decreed on second appeal. The defendants have now preferred this appeal under the Letters Patent. The defendants were admittedly the owners of a 5 annas 4 pies share in the village. This share was purchased in execution of a money decree by the plaintiffs who are cosharers in the village to the extent of 10 annas 8 pies. The share of the defendants was sold some time in 1932 and in 1933 and 1934 the respondents got delivery of possession of the different portions of the disputed land. It appears that the appellants had built certain houses upon this land and so in 1938, the decree still remaining unsatisfied, the respondents applied for the sale of the houses which stood upon the disputed land.

(2.) The appellants thereupon preferred an objection claiming that the houses could not be sold as they were agriculturists and their main source of livelihood was agriculture. The claim was upheld and the houses were exempted from sale. Thereafter the respondents brought the present suit claiming possession of the disputed land and prayed that the defendants be ousted therefrom and the structures thereon be removed. This claim has been decreed by the learned single Judge.

(3.) It has been found by all the Courts that in 1982 the land which formed the site of the houses belonging to the appellants was sold. It was open to the appellants to object to the sale of the sites of the houses on the ground of their being agriculturists but they did not do so and the sites were sold. It is, contended in this Court for the first time that the sites were not sold, but Manohar Lall J., states in his judgment that the sale certificate clearly shows that the sites were sold. Such was also the finding of the first two Courts and there can be no doubt about the correctness of that finding because in the memorandum of appeal filed in this Court it is not asserted that the sites were not sold, but the judgment of the learned single Judge is attacked on the assumption that the sites had been sold. The learned single Judge has rightly pointed out that in the claim case which was instituted by the appellants in 1988 there was only a direction that the building could not be sold and there was no dispute as to the title to the sites of the building which had already passed to the respondents.