MAFZALAR RAHMAN CHOUDHURY Vs. SREEJUKTA KARIMANNESSA BEGUM

JUDGEMENT

(1.) This appeal is by the plaintiffs and arises out of a suit brought by them for a declaration that the certificate sale in respect of the taluk described in the schedule to the plaint was fraudulent, irregular and without jurisdiction, and for restraining defendant 1, who is a ward of Court represented by the General Manager, Court of Wards, Chittagong, from interfering with their right in the disputed land and from settling the land with any other persons. The ease for the plaintiffs was that defendants 2, 3, 5, 9, 12 and 13, in collusion with the officers of the Court of Wards, got certificate cases 719 of 1931-32 and 1732 of 1933-81 instituted and the taluk put up to certificate sale by suppression of the notices prescribed by Section 7, Public Demands Recovery Act, and the sale proclamation. Certain of the plaintiffs and other necessary parties were not, it was alleged, made parties in the certificate eases or served with any notices in connexion with the sale, and it was claimed that the amalgamation of the dues on account of the two certificate eases which related to different rents, lands, and certificate debtors, was entirely illegal and improper, and the sale held in consequence thereof was without jurisdiction. As a result of all these irregularities and illegalities, the taluk was purchased for one pice by the certificate holder, the Court of Wards, causing serious injury and loss to the plaintiffs who with defendants 2 11 were owners of the taluk held under defendant 1.

(2.) The suit was contested by defendant 1 alone. He denied the allegation of the plaintiffs, and contended that there were originally two taluks which had been amalgamated into one taluk with the consent of all the recorded tenants in the last R. Section operations, and that the rents of the two taluks, which had been previously Rs. 42-7 6 and Rs. 12-13-0 respectively, were amalgamated into one rent of Rs. 55-4-6. All necessary persons were made parties, no fraud was practised, there was no suppression of notices or sale proclamations, and there was no collusion between the officers of the Wards Estate and any of the defendants. It was also claimed that the suit was not maintainable because no notice had been served on defendant 1 as required by the provisions of Section 80, Civil P.C.

(3.) The learned Munsif who tried the suit held that plaintiff 1 was a party in both the certificate cases, that the other plaintiffs 2-7 were not recorded in the R.S. Khatians and were not therefore necessary parties in these cases, and that the certificate cases and the sale were not bad for any defect of parties. He found further that there was no fraud or illegality in the cases or in the sale and consequently dismissed the suit, holding however that the suit was maintainable without service of a notice on defendant 1 under Section 80, Civil P.C. On appeal, the learned Subordinate Judge held also that the certificate sale was neither fraudulent nor without jurisdiction and was not liable to be set aside. He held further that the suit was not maintainable because of non-service of the notice prescribed by Section 80. Consequently he dismissed the appeal.