NALINAKHA SINHA Vs. RAM TARAN PAL

JUDGEMENT

(1.) This is an appeal by defendant 6 against the judgment and decree of the District Judge of Murshidabad reversing those of the Subordinate Judge of that place. Two plaintiffs brought the suit out of which this appeal has arisen. Defendant 1 was the zamindar of the property in question. He gave a usufructuary mortgage of the property to defendants 2 to 5 with possession. "Within the zamindari there was a patni which is said to have been in the possession of pro forma defendants 7 to 12. Defendants 2 to 5 being in possession of the interest of the zamindar brought the patni to sale under Regti8, 1819 on the 1 Jeyth 1325 B.S. At the sale the patni was purchased by plaintiff 1. It is alleged that plaintiff 1 conveyed 8- annas share in the patni to plaintiff 2. The plaintiffs, after their purchase, did not pay the patni rent. For the arrears of the year 1326 B. Section the patni was again put up to sale on the 1st Jeyth 1327 B.S. under Regn. 8, 1819 and it was purchased by defendant 1. Defendant 1 being the zamindar himself, he created a patni with regard to the property in favour of defendant 6. The present suit was brought on the 18 May 1921. The question is as to the nature of the suit. The plaintiffs originally brought the suit as one for a declaration that the sale on the 1st Jeyth 1327 is illegal and void and does not affect the plaintiffs right. They alleged that they, the plaintiffs, ware in possession notwithstanding the regulation sale; and they made various statements as regards the right of defendants 2 to 5 to the property in question and also with regard to the service of notices required under the regulation. There was also a prayer for confirmation of possession. Various questions were raised in the trial Court. The Subordinate Judge decided the important issues against the plaintiffs and dismissed the suit. The principal questions decided by him were that the plaintiffs were out of possession and could not therefore maintain a suit for a merely declaratory decree under Section 42, Specific Relief Act; that defendant 2 was entitled to bring the patni to sale under Regn. 8, 1819; and that the notices required to be served under the regulation were duly served.

(2.) Against that decree only plaintiff 2 preferred an appeal to the Court of the District Judge. Plaintiff 1 was not a party to the appeal either as appellant or as respondent. Before the appellate Court the appellant, plaintiff 2, only applied for amendment of the plaint. Notwithstanding the objection of the respondents the learned Judge allowed the amendment asked for, which was to this effect : That if the Court holds that tha plaintiffs were dispossessed by the defendants a decree for khas possession may be made in favour of the plaintiffs and the plaintiffs may be directed to pay the ad valorem Court-fee. This amendment was made on the 29 April, 1924. After having allowed the amendment the District Judge wa3 of opinion that the question as regards the maintainability of the suit did not: any longer arise. He next decided the other questions raised in the case, namely, first, whether the predecessor of defendants 2 to 5 had any right to put up the property to sale under Regn. 8, 1819; and, secondly, whether the usufructuary mortgage in favour of the predecessor of those defendants was invalid and void in law. These two questions he decided again3t the plaintiffs. The third question was with regard to the service of the requisite notices. This he decided in favour of the appellant and thereupon he allowed the appeal and made this decree : that the patni sale in question be declared void and the plaintiffs be restored to possession of the patni mahal (as it stood before the sale in question) ousting the defendants therefrom. Defendant 6. who took the patni from defendant 1 after his auction purchase in Jeyth 1327 B.S., is the appellant in this Court and he has made plaintiff 2 and the other defendants respondents in this appeal.

(3.) The contention on behalf of the appellant is : first, that the suit is not a suit as contemplated under Section 14, Regn. 8, 1819 and that it is the only suit; that is allowed to the previous patnidars under the law for reversing the patni sale under the regulation. The second contention is that the amendment of the plaint ought not to have bean allowed having regard to the fast that at the time when the amendment was allowed the right of the plaintiff was barred by limitation and the valuable right acquired by defendant 6, the appellant before us, was affected by this amendment. It was also endeavoured on behalf of the appellant to show that the decision of the lower appellate Court with regard to the question of notices was arrived at upon insufficient grounds and on erroneous reasonings. With regard to the last ground it is not possible for us to examine the findings of the learned Judge in the Court below. These are questions of fact and I do not think we can interfere with his finding in second appeal even if the reasons of the learned Judge be unsatisfactory. The only questions which remain to be decided are, first, with regard to the question of amendment; secondly, whether the suit as framed is maintainable under the law.