Khubi Lal Das vs Patho Jha and others

Adami, J.—The facts of the case to which this application refers are as follows :-

Brijnandan Singh who has an eight anna share of the village instituted a suit in 1914 against Chuman Khawas in respect of the rent of 62 biahas 2 Kathas 19 dhurs of land which it was alleged, Chuman had purchased from the original tenants Musaria and Phudan. He obtained a decree and in 1917 purchased the whole area in execution thereof. On 13-12-1918 Bathojha field an application under O. 21, R. 100 claiming that his grand-father had purchased 2 bighas 5 kathas 13 dhurs out of the 62 bighas 2 kathas 19 dhurs from Musharia and Phudan and his grand-father, and after him, Batho Jha had been in possession; and his grand-father was shown to be in possession of the 2 bighas 5 kathas 13 dhuras in the record-of-rights. He complained that he had been dispossessed by Brijnandan in taking delivery after the purchase at auction sale. Batho''s application was granted and he was put in possession of the 2 bighas odd on the 30th May 1919.

Then on the 28th January 1920 Brijnandan instituted a suit again against Chuman Khawas in respect of the rent of the 2 bighas out of the 62 bighas. Chuman did not appear to contest the suit and Brijnandan thus obtained an ex parte decree. At the sale in execution of the decree the 2 bighas were purchased by the present petitioner Khub Lal, who, it seems, is a servant of Brijnandan Khub Lal obtained delivery of possession on March 9th 1920, and then on April 8th 1920, Batho Jha, the opposite party again filed an application under Order 21, Rule 100.

On December 5th, 1920, the Munsif granted the application, and it is against that order that the present application is made by the petitioner. The Munsif found that the first decree obtained by Brijnandan against Chuman was a money decree, and that after Batho Jha had succeeded in his first application, Brijnandan was in possession of only a portion of Chuman''s holding, and the second suit as it related to only a portion of the holding and there was no evidence that the holding had been split up, could give Brijnandan nothing more than a money decree. As Batho Jha had shown that he had been in possession on his own account he had therefore a right to be restored to possession.

It is argued that the Munsif by his order has practically reversed the rent decree obtained by Brijnandan and that he had no jurisdiction to do that. It is also contended that in holding that only a portion of a holding was in suit and that therefore only a money decree could be passed, the Munsif disregarded the ruling of this Court, and that Batho Jha was not entitled to make an application under Order 21, Rule 100 as he cannot come under the description of a "person other than the judgment debtor." Finally it is urged that as the petitioner was not the decree-holder but a bona fide purchaser for value, he could not be deprived of possession and the only remedy for the opposite party was to institute a suit to set aside the ex parte decree as being obtained by fraud.

With regard to the last mentioned argument it may be pointed out that there is no finding that the petitioner was a bona fide purchaser for value; the Munsif points out on the other hand, that he is a servant of the landlord, Brijnandan and all the circumstances of the case point to the fact that the landlord was doing all he could to get rid of Batho Jha. The fact of his instituting a suit for rent against Chuman Khawas in respect of the two bighas when he knew that he himself had bought up the whole of Chuman''s holding previously, and that Chuman had no further interest in it, as also the fact that be knew of Batho''s previous successful application under Order 21, Rule 100, as also the fact that Chuman made no effort to appear and resist the demand for rout for the two bighas odd, added to the fact that Brijnandan''s own servant purchased the land at the auction sale, all these facts are sufficient to convince me that the petitioner was not a bona fide purchaser for value.

I cannot find that the Munsif in any way reversed the rent decree obtained against Chuman Khawas by Brijnandan. He has not attacked in any way the decree as against Chuman, what he has done is to find that Batho is not bound by it and cannot be turned out of lands which are rightly in his possesion. Batho did not derive his interest through Chuman but obtained it from Musharia and Phudan, and he is altogether independent of Chuman, so that he is a "person other than the judgment-debtor" and could apply under Rule 100 of Order 21.

Mr. Sen argues that the suit for rent of the 2 bighas was a suit for the rent of an entire holding, and even urges that the 2 bighas 5 kathas 13 dhurs was not included in the 62 bighas 2 khathas 19 dhurs and was not identical with the 2 bighas 5 kathas 13 dhurs which formed the subject of the previous application under Order 21, Rule 100. That contention cannot stand for a moment; the petitioner himself stated in paragraph 3 of his plaint in the second suit that the 2 bighas 5 kathas 13 dhurs were part of the 62 bighas 2 kathas 19 dhurs.

Whether the second decree obtained by Brijnandan was a rent decree or a money decree, it is quite clear that in this case Batho Jha who was not a party to the suit, and did not in any way claim through Chuman Khawas, had full right to come forward under Order 21, Rule 100. Chuman, too, to the knowledge of Brijnandan had no subsisting title to, or interest in any part of the 62 bighas, and if the decree was a rent decree there were no lands which could be charged with the rent.

It is quite clear that the landlord has been attempting to get rid of Batho Jha from the land by indirect and not honest means.

I refuse to interfere. The application is rejected. Hearing fee five gold mohurs.