Patna High Court
Ghuran Rai And Ors. vs Babu Kali Prasad Singh And Ors. on 20 April, 1927
Equivalent citations: 102IND. CAS.446, AIR 1927 PATNA 404
JUDGMENT Dawson Miller, C.J.
1. On the whole although the facts of this case might have been a little less obscure than they would appear to be I think that the appeal must be dismissed. The only question which is raised in the appeal before us now is whether the plaintiffs were entitled to bring a separate suit or whether they ought not to have had the question now under determination disposed of in execution in the rent suit. The facts as far as one can gather them from the evidence put before us are that the plaintiffs are co-sharer landlords having a 12 annas share in Mauza Gobardhanpur. Within that 12-annas share was the holding in the occupation of the 1st defendant. By the year 1913 the plaintiffs appear to have acquired by some means or other possession of certain plots within that holding and were retaining them as their own, for in the Record of Rights published in that year although the 1st defendant is recorded as tenant, certain of the plots which are the subject of the present dispute are entered in the remarks column as in the adverse possession of the plaintiffs, the tenure-holders. In 1914 that is in the following year the plaintiffs granted a usufructuary mortgage to defendants Nos. 7 to 9 in their 12-annas share in village Gobardhanpur. That would include the tenancy of the defendant No. 1 but from that, mortgage were excluded both zerait and khas lands of the plaintiffs. It was clear, therefore, that the rehandars knew that under their mortgage they had no interest in the bakasht lands which were held by the present plaintiffs themselves. It seems to me that the bakasht would include these plots which the plaintiffs were recorded as being in possession of but included with the original tenancy of the defendant No. 1. In 1918 the defendants Nos. 7 to 9 as rehandars brought a suit for rent against the tenants, the defendant No. 1, and in that suit they impleaded the present plaintiffs the tenure-holders for some reason or another which does not appear in the evidence before us. They were impleaded we are told as pro forma defendants. A decree in that suit was passed and in pursuance of that decree the decree-holders took out execution against the defendant No. 1 himself and put up his holding for sale. The present plaintiffs who were the pro forma, defendants in that suit were not made parties in the execution proceedings and thereupon the holding was sold and the present plaintiffs subsequently took proceedings under Order XXI, Rule 100 of the Civil Procedure Code for the purpose of having excluded from the sale the plots of which they were in possession. That application failed and the present suit was brought under Order XXI, Rule 103 claiming possession of the same plots. The only question is whether the plaintiffs were, in fact, judgment-debtors within the meaning of Order XXI, Rule 103. Having regard to the facts which I have already mentioned it seems to me that they were not judgment debtors. If this land was their bakasht land it was no longer part of the tenancy of the defendant No. 1. The suit for rent was against the defendant No. 1 in respect of that tenancy and it was that tenancy which was sold in execution and I cannot help feeling that in these circumstances the plaintiffs ought not to be regarded as judgment-debtors in the rent suit. Why they were added in that suit it is impossible to say. The documents have not been translated and are not before us in this appeal and on the whole I think that this appeal ought to be dismissed with costs.
Kulwant Sahay, J.
2. I agree.