1. Briefly, the facts involved in this appeal are these: The plaintiff's father purchased the shares of the descendants of one Amjad in a hamlet appertaining to khewat No. 1 in a certain mahal described in paragraph 1 of the plaint at an auction sale held on the 16th of July, 1910. The plaintiff filed the suit out of which this appeal has arisen on the last day of limitation against the appellant who was a co-sharer in the mahal. The statement in the plaint was that the defendant took possession of the purva without the plaintiff's consent. The plaintiff stated that he was in possession and was dispossessed, but did not state when he got possession and when he was dispossessed.
2. The appellant's defence was mainly the following:
The auction sale was held through an amin and this was in contravention of Section 193, Clause (1) of the Tenancy Act and the sale did not pass any title to the plaintiff ;
(2) the suit is barred by time;
(3) the share purchased by the plaintiff is less than what is claimed; and
(4)at the time of sale some of the judgment-debtors were minors and their certificated guardian was not made their guardian of the suit, and that therefore the sale was invalid.
3. The Court of firnt instance dismissed the suit. But the lower Appellate Court gave a decree without, however, clearly specifying to what extent the plaintiff's suit stood decreed.
4. I will now consider the several points that have been urged on behalf of the defendant-appellant before me.
5. The first point that has been urged is that the qurq amin was not competent to sell. Section 193, Clause (1) of the Tenancy Act says that when any property is to be sold is a mahal or a share in a mahal the decree should be sent to the Collector who would execute the same as if it; had been a decree of his own Court. The purva or hamlet is neither a whole mahal nor a share in a mahal. It may be a part of a mahal or portion of a mahal being an isolated plot of land within the ambit of a mahal. It is clear, therefore, that the rule contained in Clause (1) does not govern the present case. I may point out that, ordinarily everything that is usually sold in execution of a revenue Court decree is situate within a mahal, e.g., a tree, a house, etc. If the interpretation put by me on Section 193, be too narrow, all execution cases must be heard in the Court of the Collector himself and no other officer. This could hardly have been contemplated. Further, it appears to me that there is nothing in Section 193 which would go to show that the irregularity would vitiate the sale. There is no question of jurisdiction. The Collector can sell only as the revenue Court and the decree in this instance being a rent-decree was also passed by the revenue Court. Instead of a Collector an Assistant Collector sold the property. I hold that the sale is good and the cases cited by the learned Counsel for the appellant, viz. Fatmatul Kubra v. Achchi Begam (1914) 36 All. 33 and Mahmud Jahan Begam v. Govind Ram A.I.R. 1921 All. 344 have no application. The language of law on which those rulings were given was different.
6. The second point that was urged before me was that three of the seven descendants of Amjad, viz., Ibrahim, Mt. Najiban and Mt. Naziran were minors and were not properly represented in the execution proceedings. This point was not urged before the lower Appellate Court in support of the judgment. It however, appears that they were represented in the execution proceedings by the same persons as had been appointed guardians for the suit in the suit itself. This is to be gathered from the judgment of the Court of first instance. I hold that there is nothing irregular to vitiate the sale.
7. The third point urged was that of limitation and I think the lower Appellate Court was right. The defendant-appellant is a co-sharer and he never asserted that he was holding adversely to Amjad or his heirs.
8. The last question that was urged before me relates to the quantity of share to be decreed to the plaintiff. On this point, as I have already said, there is an ambiguity and the learned Judge of the lower Appellate Court has not decided the point. I remit the following issue to the Court below under Order 41, Rule 25 of the Civil P.C.
9. What shares did the judgment-debtors hold in the purwa at the date of the auction purchase, viz., on the 16th of July, 1910?
10. Fresh evidence will be admitted and the finding will be returned in two months.
11. I may draw the attention of the Court below to the fact that it is a part of the appellant's case that one at least of the hairs of Amjad had already transferred his share in the purwa before the auction sale. The effect of this on the issue will have to be considered by the lower Appellate Court.