Rasik Behari Prasad Chaudhuri and others vs Hirdenarain Chaudhuri and others

Adami, J.—The present respondents having obtained a money-decree against the appellants applied for execution by sale of a five gundas out of 10 gundas share belonging to the judgment-debtors out of the entire 16 annas of Manza Damodarpur Nandan. The sale of the share as above described was held on the 7th September, 1908, and the sale was confirmed, the sale certificate also containing the above description of the property sold.

Possession was delivered in due course. The appellants instituted a suit in 1917 for a declaration that the sale was fraudulent and void; they asserted that the respondents had taken possession of a ten gundas share and prayed for recovery of that share or at least of five gundas out of the ten gundas.

The Subordinate Judge found that there was no fraud in connection with the sale, but that, while entitled to take possession of only 5 gundas out of the judgment-debtors share in the village, possession bad been taken of a 10 gundas share. He therefore decreed the suit in favour of the appellants for recovery of five gundas out of the 10 gundas.

On appeal the learned District Judge pointed out that there was a discrepancy between the khatian and khewats on the one side and the entries in Register D on the other as to the extent of the present appellants'' share. He held that the expression "Fanch gunda Minjumle das gunda pokhta bad robast soleh anna", used in the application for execution and the other documents connected with the sale and its confirmation and the delivery of possession meant that the appellants held 10 gundas share in the village or patti which was equivalent to 5 gundas share in the Mahal, and that what the respondents had purchased was the whole share of the appellants in the village and Mahal. He decreed the appeal and dismissed the suit.

The khatian and khewat of 1899 show that the appellants had 5 gundas share in Damodarpur, with an area of about 5 bighas, Register D however shows 10 gundas share in Nandanpur and no share in the other villages of the Mahal, and the Register also shows that the respondents held a 5 gundas share in Nandanpur by virtue of purchase. The Subordinate Judge came to the conclusion that if the appellants had 10 gundas share, and 5 gundas were sold to the respondent, then the appellants are entitled to the remaining five gundas share.

It is impossible to reconcile the register with the khatian and khewat, and it is equally impossible to construe the words "Panch ganda Minjumle Das gunda Pokhta" as meaning a ten gunda share in the village equivalent to a five gunda share in the Mahal. The application for execution shows that before the sale the respondent was relying on the entries in Register D. There is only one guide for solution of the difficulty. The inventory of properties attached to the application for execution, the sale certificate and the writ for delivery of possession describe the 5 gundas out of 10 gundas share to be five bighas in area, and it is to be taken that this is the area of which the respondents were entitled to take possession under the decree, and of which possession was given by the Court on the 13th May, 1909. No objection was made then by the judgment-debtors and no steps were taken by them till 1917 when they sought to prove that the sale was obtained by fraud and failed.

What was sold to the respondents was a share in the village, and it was of a share that they received possession, there is nothing to show that they received possession of more than a 5 gundas share, nor have the appellants shown, as far as appears from the record before the Court now, that the respondents are in possession of lands which exceed in area the equivalent of a 5 gundas share; in order to succeed it was necessary for the plaintiffs in the suit to show that the defendants were in possession of land exceeding a 5 gundas share. On the finding of fact they cannot contend that the defendants were not entitled to a 5 gundas share by virtue of their purchase.

Having in view the discrepancy between the khewat and khatian on the one side and the Register D on the other and the failure to prove that the defendants respondents are in possession of a share in excess of that which they purchased I am of opinion that the suit and the appeal must fail. I would, therefore, dismiss the appeal with costs.

Coutts, J.

I agree.