Shaikh Mohammad Waheed vs Musammat Sunder Basi Kuar

This was a suit for declaration of the plaintiff''s title to and for declaration of the plaintiff''s title to and for confirmation of, or, in the alternative, for possession of a share in Mauza Rampur Kumhaialla, Tauzi No. 88 in the District of Shahabad.

The suit was dismissed in the Court of first instance but was decreed on appeal, and against this decree the defendants have appealed to this Court. It appears that in this Mouza there were a number of co-sharers and there were various partitions and various separate accounts the last of which resulted in the plaintiff having a share of 1 anna 2 pies in Khata No. 1. This share was in her possession and for it she paid Government revenue. There was a mistake, however, in the Collector''s register in regard to this share and it was included in the residuary share of the mahal.

This residuary share was entered in the Collector''s register as 1 anna 4 1/2 pies but it was in reality 6 pies made up of 2 1/2 pies plus 3 1/2 pies wrongly entered in another Khata, Subsequently, the residuary share fell into arrears and was sold by the Collector to the contesting defendants who, on the strength of the purchase, took possession of the whole share as entered in the Collector''s register. The plaintiff brought this suit to recover her share which had never in fact been in arrears.

The only question in this appeal is whether the defendants acquired by their purchase a title to the residually share a recorded in the Collector''s register or whether they only acquired a title to the real residuary share. The learned Subordinate Judge has found that they only acquired a title to the real residuary share and that the plaintiff''s share which had been wrongly included was not affected by the sale. This view is, in my opinion, undoubtedly correct. Under the Revenue Sale Law the Collector is given power to sell estates and shares which are in arrears; it gives him no jurisdiction to sell shares which are not in arrears. If by mistake a share be sold which is not in arrears the Collector acts without jurisdiction; and, that being so, the real owner''s title is not affected by the sale. This has been held in a long series of cases of which I need only refer to the decision in Ganga Pershad Sahu v. Irshad Ali Khan 13 Ind. Cas. 959 : Cri.L.J. 54.

In my opinion the matter bas been rightly decided by the learned Subordinate Judge, and I would dismiss this appeal with costs.