BASIRUDDIN MAHAMMAD Vs. PRASANNA DEB RAIKAT

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff and it arises out of a suit commenced by him for declaration of his title to the disputed property and for confirmation of possession in respect of the same. There was also a prayer for a permanent injunction restraining defendant 1 from interfering with the plaintiff's possession.

(2.) The facts which gave rise to this suit may be shortly stated as follows. The subject-matter of the dispute is a tenure which was held admittedly by the pro forma defendants 2 to 21 under defendant 1, as landlord. On 21 February 1919 the tenure was put up to sale in execution of a rent decree and purchased by one Basiruddin who in his turn sold it to one Garibulla on 16 July 1919. Garibulla, while in possession of this tanure, mortgaged it together with an occupancy holding to the plaintiff by a mortgage deed executed in April 1920. The plaintiff secured a mortgage decree on the basis of this mortgage bond and on 24 June 1931 both the tenure and the occupancy holding were put up to sale and sold in one lot for Rs. 1100 to the plaintiff. The plaintiff deposited the landlord's fees as required under Section 13, Bengal Tenancy Act, in respect of the tenure only, but did not deposit the fees in respect of the occupancy holding. The result was that on 25 August 1931, the executing Court set aside the sale in respect of the occupancy holding purporting to act under Section 26-E, Sub- section 3, Bengal Tenancy Act, and confirmed the sale in respect of the tenure.

(3.) In 1932 the landlord, defendant 1, brought a rent suit, being Suit No. 135 of 1932, for recovery of rent due in respect of this tenure against pro forma defendants 2 to 21 without making either Basiruddin, Garibulla or the present plaintiff parties defendants. The rent suit was decreed and in execution of the same the tenure was sold and purchased by defendant 1 on 21 June 1933. The landlord purchaser took symbolical possession and as he threaten-ed to dispossess the plaintiff who as he says was in possession as a purchaser in execution of his mortgage decree, the present suit was instituted. The trial Court gave the plaintiff a decree holding that the present decree, in execution of which the landlord purchased the tenure had not the effect of a rent decree.