1. These two appeals, Nos. 154 and 155 of 1886, relate to two suits which were instituted by the respondent, plaintiff, against the two defendants appellants on the 3rd August 1883.
2. Both the Courts below have found in favour of the plaintiff, and two separate appeals are preferred by the two defendants to this Court, which may conveniently be disposed of in a single judgment. The case upon which the plaintiff came into Court is shortly this. He said that on the 20th September 1877, one Salamat Ali purchased certain rights and interests at an auction-sale in mauza Mustafabad, pargana Chail, in the Allahabad District. These rights and interests were brought to sale by one Badri Nath, and they were sold as the property of Muhammad Abdul Kadir and Kamal ud-din Ahmad, in mauza Mustafabad, pargana Chail, Allahabad District. Subsequently, in March 1879, or 1286 Fasli, Salamat Ali transferred what he had purchased to Kutub Husain, the present plaintiff, who, therefore, is entitled to have whatever was purchased by Salamat Ali at the sale of the 20th September 1877.
2. Now, it appears that the village of Mustafabad is situated on the banks, of the river Ganges, and that from time to time land has accreted, and does accrete, to that mauza owing to the receding of the river, which in the rainy season gets covered with water and again temporarily disappears. Such land, thus from time to time covered with water, has been known as the kachar land of the village, and prior to 1875 it has so frequently made its re-appearance that the Revenue authorities in that year, for greater convenience in assessing it for revenue, treated it as a separate mahal. Accordingly, therefore, it may be taken that mauza Mustafabad contained two mahals, that is to say, two revenue-paying divisions, respectively known as the Uparwar Mahal and the Kachar Mahal. It also appears that in 1877, at the time of the auction-sale to Salamat Ali, the Kachar Mahal was submerged, and the contention which subsequently to that sale was made by the defendants before the Revenue authorities, whose decision led to the present suit, and is maintained here, is that these submerged lands, that is, the Kachar Mahal, could not and did not pass to the auction-purchaser under his purchase of the 20th September 1877, but only the Uparwar land.
3. The learned Counsel for the appellant here has vigorously maintained that position, and in support of it has referred to a ruling of Mahmood and Duthoit, JJ., in Fida Husain v. Kutub Husain, I. L. E., 7 All., 38; and he further contends that as, in the sale-notification, only the revenue assessed upon the Uparwar land was notified, and as there was no distinct or specific attachment of the Kachar land, the sale, as regards the first point, did not carry these lands; and next, that the sale as regards them was a void sale, because there having been no attachment, the sale was void ab initio: and we are referred to a Full Bench ruling as to the last contention--Mahadeo Dubey v. Bhola Nath Dichit, I. L. E., 5 All., 86. With regard to the ruling in Fida Husain v. Kutub Husain referred to above, I must say it appears to be directly applicable to the present case, and I confess that I fail to see the distinction sought to be drawn by the learned pleader for the respondent.
4. I need scarcely say that for any decision written by Mr. Justice Mahmood naturally have a high respect, and I should not, except for strong reasons, refrain from following it; but I regret to say that in the present instance cannot adopt the views expressed by that learned Judge therein, and, with every deference, they do not commend themselves to my better judgment.
5. I think when the rights and interests of a Judgment-debtor as proprietor in a village are put up and sold, without any restriction of any kind, and the sale-certificate, which is granted to the purchaser, transfers, or purports to transfer, those rights and interests, without any limitation or reservation, that the entire rights of the judgment-debtor pass to the purchaser as they exist in the whole mauza at the date of the sale taking place. In the present case, the proprietary rights of the judgment-debtors in mauza Mustafabad were sold without limitation or restriction of any kind, and the mere fact of the mention in the sale-notification of the revenue of one of the mahals, namely, the Uparwar Mahal, did not, in my opinion, affect what passed by the sale, more especially as, at the time, this was the only mahal from which revenue was recoverable by Government, the other being submerged. Whichever way the matter is looked at, it seems to me that either the whole rights of the judgment-debtors in both mahals were sold, or, if not, their rights in the Uparwar Mahal, with the accessory and contingent right to any lands which might subsequently appear from the river's bed and accrete to such mahal.
5. As regards the point about the attachment, it seems to me beyond doubt that the entire proprietary rights of the judgment-debtors were attached, which included their interests in both mahals, and the sale-certificate clearly shows that all the judgment-debtors' rights in the village Mustafabad were passed to the purchaser.
6. For these reasons I regret I cannot follow the ruling of Mahmood and Duthoit, JJ., already referred to. I may add that in a similar case decided by the late Chief Justice, Sir Comer Petheram, and Tyrrell, J., on the 16th March, (S. A. No. 818 of 1885), those learned Judges have held, as I hold, in a case of lands called Uparwar and kachar subject to similar incidents as the village lands in the present dispute, that a sale of the proprietary rights in a village covers both.
7. This being the view I take, both these appeals Nos. 154 and 155 must be dismissed with costs.
8. I entirely concur in dismissing both these appeals with costs.