MAHORUDDI SHEIKH Vs. SAFED ALI KHAFILA

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decree of the Additional District Judge of Khulna reversing the decision of the Munsif of Bagerhat. The suit out of which this appeal arises was for a declaration that the title of the plaintiff and the pro-forma defendant 9 to the property in suit has not been affected by a rent sale held in April 1921.

(2.) The facts are these : The plaintiff as well as defendant 9 were the owners of two nim howlas. These nim howlas were let out in ijara by the owners by a deed, dated 29 Jaishta 1319, by which the father of defendant 7 named Rahimulla Akan was granted a lease for eight years of these tenures which was to end in Chaitra 1326. Rahimulla sold his pattai right to defendant 1 by a kobala dated 1 Asar 1319, (Ex. 3). It is evident that by virtue of his purchase defendant 1 went into possession and paid rent to the superior landlords for two years. There was a condition in the patta of Rahimulla that he would pay the rent due to the superior landlords on behalf of his lessors, the plaintiff and defendant 9, on account of the two nim howlas. Defendant 1, as already stated, paid rent for two years of his purchase of the ijara rights but he defaulted in the payment of rent for the years 1321 to 1324. Thereupon,, the landlords brought two rent suits-against their tenants, that is, the plaintiff and defendant 9, and obtained two ex-parte rent decrees. In execution of those decrees the nim howlas were sold and they were purchased by defendant 1 himself. After the sale, the present plaintiffs presented an application for setting it aside on the ground of irregularity and other matters which fall within order 21, Rule 90, Civil P.C. That application was rejected.

(3.) After failing to have the sale set aside, the plaintiff has brought this present suit for a declaration that his right as well as that of defendant 9 in the nim howlas have not been affected by the auction sale. The plaintiff alleged that after the expiry of the ijara in 1326, he and his co-sharers got into possession of the property and they are still in possession. Defendant 1 denied his purchase of the ijara right from Rahimulla, or that he was under an obligation to pay the rent due to the superior landlords on behalf of the plaintiff and his co- sharers. The learned Munsif decided the facts in favour of the plaintiff. He held upon the evidence adduced, not only by the plaintiff but also by defendant 1 himself, that defendant 1 did actually purchase the ijara interest of Rahimulla which he had got from the plaintiff and his co-sharer. He also found that defendant 1 was under an obligation to pay the rent to the superior landlords on behalf of his vendor's lessors and, as a matter of fact, he did pay the rent for two years. Afterwards he made default as alleged by the plaintiff and purchased the property himself at the execution sale.