CHATDRADHARI LAL Vs. BHAGWATI PRASHAD

JUDGEMENT

(1.) The plaintiffs-respondent are the holders of a mortgage dated 15 November 1920, secured on the sixteen annas of tauzi No. 1281, situated in Mauza Sikatia. They brought a suit on their mortgage in 1933. During its pendency there was default by the propraetors, who were the mortgagors, in payment of land revenue as a result of which the entire estate was put up for sale under the Bengal Land Revenue Sales Act, 1859, on 30 April 1934. It was knocked down at a price of Rupees 17 odd, the bidder being defendant 7 of this litigation, defendant second party. The plaintiffs obtained: their preliminary mortgage decree on 31 July 1934 and the defendant second party took out delivery of possession in pursuance of his auction-purchase in December 1934 and followed it up by taking mutation of his name in the Collectorate Register D. The present suit, which was instituted on 12 March 1935, claims a declaration that the revenue sale was altogether fraudulent and was, as against the plaintiffs, void and inoperative, that the plaintiffs mortgage lien was not extinguished and that the plaintiffs could put the disputed property to sale for the satisfaction of their preliminary decree. The suit was resisted on the ground that the defendant second party was a genuine and independent purchaser who was holding the property in his own right.

(2.) The Subordinate Judge came to the conclusion that he was not so, that the defendant in question (defendant 7) was an old and trusted servant and mukhtar- i-am of the father-in-law of defendant 4, who is maternal grandfather also of defendant 5, that in the mortgage suit this very defendant 7 filed vakalatnama on behalf of Bishambhar Nath, the guardian ad litem for the minor defendant. The Subordinate Judge thought it was clear that defendant 7 had full knowledge of the mortgage suit. He found that admittedly this defendant knew that the defendants first party were owners of the mauza. He found that the defendants first party were also fully aware that the mauza had been advertised for sale and that they deliberately made default so as to cause the property to be sold for a paltry sum of Rs. 17 odd which was the actual amount of the revenue. He held that the defendants first party wilfully and deliberately defaulted and brought about the sale in order to defeat the mortgage rights of the plaintiffs and subsequent mortgagees, and that defendant 7 merely lent his name in furtherance of the fraudulent design which these defendants proceeded to carry into effect by making over to defendant 7 the collection papers of the mauza as well as the survey khatian and allowing him to enjoy the services of their own patwari Thakur Prasad.

(3.) His opinion was that actually the defendants first party had retained possession and enjoyment of the property for themselves. On this view he held that the plaintiffs were entitled to the declaration prayed for, and he decreed the suit declaring that the revenue sale in respect of the disputed Mauza Sikatia was fraudulent and inoperative against the-plaintiffs and that the defendant second party has acquired no title as against the plaintiffs and that the plaintiffs are entitled to proceed against the disputed mauza in satisfaction of their mortgagee decree,