SURYA MOHAN THAKUR Vs. MTBIBI TASIRAN NISAN

JUDGEMENT

(1.) The subject of the dispute which has given rise to this appeal is an occupancy holding of 8.89 acres of which the landlords are, as to twelve annas share, defendants 1 and 2 and, as to the remaining four annas, defendant 4. On 19th September, 1932 defendants 1 and 2 filed a rent suit (No. 1107 of 1932) making defendant 4 a party defendant. On the same date defendant 4 filed another suit (No. 1120 of 1932) making defendants 1 and 2 parties defendants. Both the suits purported to be under the provisions of Section 148-A, Bihar Tenancy Act. Both the suits were decreed ex parte, Suit No. 1107 on 10 January 1933 and Suit No. 1120 on the following day. On 9 February 1934 defendants 1 and 2 applied for execution of their decree, Defendant 4 also applied for execution of his decree on 26 February 1934. On 21 June 1934 the holding was sold in execution of the decree of defendant 4 and purchased by him.

(2.) On 4 July 1934 defendants 1 and 2 also purchased the holding in, execution of their decree. On 15 March 1935 defendant 4 settled the holding with the plaintiff. On 11 January 1936 defendants 1 and 2 settled the same holding with defendant 3. The plaintiff thereupon brought the present suit on, 25 March, 1936 praying for a declaration of his title to and recovery of possession of the disputed holding. The Munsif dismissed the suit on the finding that the decree of defendants land 2 had the effect of a rent decree, while the decree of defendant 4 had the effect of a money decree and therefore what passed at the auction sale to defendant 4 was not the holding itself but the right, title and interest of the judgment-debtor. On appeal the learned Subordinate Judge has reversed the decision of the Munsif, holding that both the decrees had the effect of rent decree and the first sale which was held on 21 June 1934 would prevail. Defendant 2 has preferred this second appeal.

(3.) The first point argued by Mr. Ghosh on behalf of the appellant is that the Subordinate Judge was wrong in holding that both the decrees had the effect of rent decree. His contention is that the first decree which was obtained by defendants 1 and 2 on 10 January 1933 was a rent decree, whereas the decree which was obtained on the following day by defendant 4 had the effect of a money decree. In determining the correct position we must proceed on the footing that both the decrees are valid and binding decrees so far as the parties thereto are concerned. Neither party can be heard to say that either of the decrees was wrong or improperly obtained. In the second suit, after the decree in the first suit had been obtained, it could have been objected that the suit was not maintainable because a rent decree under the provisions of Section 148-A, Bihar Tenancy Act for the entire rent of the holding had already been passed.