KHURSHID ALI Vs. LACHMAN SINGH

JUDGEMENT

(1.) This is a defendant's appeal against an order of remand, dated 22nd January 1946, made by the Additional Civil Judge of Aligarh, getting aside a decree, dated 16 February 1946, passed by the Munsiff of Havali of the same district. The plaintiff-respondent, Thakur Lachhman Singh, had instituted the suit which has given rise to this appeal against Khurshed Ali, the defendant-appellant, and his sisters to recover possession over certain landed property, which admittedly belonged to Nasir Ali Khan, father of the appellant. The suit was instituted in the following circumstances:

(2.) The plaintiff held a simple money decree against Nasir Ali Khan. It was granted on 16 September 1924 in Suit No. 203 of 1924. The decree was put in execution and the property in dispute was attached and sold on 21 December 1932. It was purchased by the plaintiff. Nasir Ali Khan died in the meantime and his son Khurshed Ali (defendant 1) and his daughters, Mt. Jafri Begum, Saliman and Masitulnisa (defendants 2 to 4) entered into possession of the property. Consequently, the plaintiff could not obtain possession over the property and instituted the suit for recovery of possession and mesne profits.

(3.) The suit was contested by Khurshed Ali alone on three grounds: (1) Nasir Ali Khan having, in the year 1924, sold the property in lieu of dower debt to his wife had no saleable interest therein on the date of sale in favour of the plaintiff; (2) Nasir Ali Khan having been adjudged an insolvent on 8 November 1924, the sale in plaintiff's favour which had taken place without the leave of the insolvency Court and without impleading the receiver was invalid; and (3) the suit was barred by time and the plaintiff was not entitled to recover any mesne profits.