Birijraj Pandey vs Deoki Ahir

Wort, J.—The parties to this appeal are defendant 1 who was the prior purchaser of the land in dispute, defendant 2, who sold the property to the plaintiff, defendant 4, who was the landlord and obtained a decree for rent against his tenant in execution of which decree, defendant 2, predecessor in title of the plaintiff, purchased the holding, and defendant 3, who is joined and was the original tenant.

The dispute between the parties was as to whose purchase should prevail, either the purchase of the plaintiff, who claims to have bought the property from defendant 2 who in turn as I have stated purchased in execution of a rent decree, or the purchase by defendant 1 who purports to have bought the property prior to the execution sale.

The trial Court decided that the execution case in which defendant 2, the plaintiff''s predecessor, had purchased was in execution of a rent decree granted as a result of a rent case, and it was decided by the trial Court that the decree had been executed as a rent decree and therefore defendant 2 and in. turn the plaintiff had acquired the property and not merely the right, title and interest of the tenant. The appellate Court, however, without deciding the question of whether the execution was of a rent decree, bad decided that on the evidence it was impossible to ascertain whether the suit was a rent suit or not. The learned Judge stated that that point could not be decided in the absence of the plaint. In my judgment the decision of the learned Judge in appeal cannot be supported. If in fact the decree which was the basis of the plaintiff''s title was a rent decree and executed as such it must be assumed that such a decree and such an execution arose out of the rent suit, and I follow the decision on that point in the case of Mohammad Hasim Khan and Others Vs. Gaya Rai and Others, . It is not an authoritative report but the reason which my learned brother Adami, J., gave seems to me to be unanswerable, namely that the presumption to be drawn u/s 114 of the Evidence Act was that there could not have been a rent decree unless in fact there had been a rent suit.

Now the learned Additional Subordinate Judge in appeal below has not decided the question of whether the decree was executed as a rent decree. I propose to decide that point under the powers given me by Section 103 of the Civil Procedure Code, and looking at the documents which have been relied upon and some which have not been referred to by the trial Court, namely Exs. 6, 7, and Exs. 4 and 5, it is abundantly clear that all the proceedings from the time of the decree to the time of the sale were proceedings arising out of a rent suit and in execution thereof the sale itself was held u/s 163, of the Bengal Tenancy Act as Ex. 6, shows.

In my judgment, therefore, the judgment of the learned Subordinate Judge in appeal must be reversed and that of the learned Munsif restored. In those circumstances the appeal will be allowed with costs in this Court and in the Court below.