Ramjas Pandey vs Awadh Mahton and Another

Foster, J.—The plaintiffs have a two-thirds raiyati interest in Khatas Nos. 81 and 82, which were put to sale in execution on the 6th September 1918 and purchased by Ramjas Pande, the appellant (Defendant No. 10). The suit is for declaration that the sale has not passed the plaintiffs'' interest.

The facts are as follows: The Defendants Nos. 1 to 6 own shares in the villages Mohendra Buzrud, within which lies Khata No. 81 and Amwari Bahalia, which includes Khatas Nos. 82 and 83. These three parcels of land (81 to 83) form one holding with one consolidated rent. Plaintiffs have acquired the raiyati interest in two-thirds of each of these khatas in the following manner--by purchase from Gopal Lohar, Defendant No. 9, and one Daulat Malik, so far as Nos. 81 and 82 are concerned; and by a family arrangement so far as No. 83 is concerned. In this Khata No. 83 one Khata, plaintiffs'' great-uncle, had a two-thirds interest. Ho died issueless, leaving brothers and nephews; but by a family arrangement the interest in Khata No. 83 was made over to plaintiffs'' father. Defendants Nos. 7 and 8 own the remaining one-third interest in the three khatas. The holding is not transferable without permission of the landlords by village custom.

In 1917 (after these acquisitions by the plaintiffs and their father) the landlords, Defendants Nos. 1 to 6, sued and obtained an ex-parte decree for arrears of rent. The suit was apparently in the form indicated in Section 148-A of the Tenancy Act and the decree is on the face of it a rent decree. Whether it was in fact a rent decree is an important question. The decree was put into execution, and Khatas Nos. 81 and 82, sold and purchased in September 1918 by Ramjas Pande, Defendant No. 10. If it was a rent-decree, it seems to me that the plaintiffs, transferees of a two-thirds interest in each of the khatas, would have no right to oppose the entry of the auction-purchaser, the rent being a first charge. On the other hand, if the decree was not a rent decree, the purchaser did not necessarily buy the entire Khatas Nos. 81 and 82, but only the right, title and interest of the judgment-debtors.

Now the defendants in that rent suit were Defendants Nos. 7, 8 and 9 and Daulat Malik. Ketha Mahto''s interest was not represented, his heirs not being impleaded. But for this defect the decree would possibly have fulfilled the requirements of a rent decree in spite of the transfers made by Gopal and Ketha''s heirs of parts of the holding to the plaintiffs. But the tenants were a group of lohars and a kumri, and not a joint family, and the lohars could in no way represent the interest of Ketha''s heirs. So I find that the decree was not a rent decree. I refer to Jagattara Dassya v. Daulti Bewa [1910] 37 Cal. 75.

Two points remain to be considered. It is urged that the plaintiffs, as transferees of part of the holding, have no right to bring this suit. There appears to be some confusion in this argument between the right to sue and the right to succeed in the suit. The plaintiff''s interest in the entire holding was threatened by the execution sale of two of the khatas; I think that fact constituted a valid cause of action.

It is next urged that they should have sued for possession, but the delivery of possession to Ramjas Pande did not take place till after the institution of the suit.

The appeal is dismissed with costs.