1. The dispute between the parties to this appeal is between two rival purchasers at auction sales. It appears that several persons obtained decrees against one Syed Haider Shah who was one of the zemindars of the village Khanpur. In execution of the decree of one Lachhmi Narain, the zemindari share of Syed Haider Shah was sold and purchased by the plaintiff-respondent. In execution of another decree obtained by one Lakkhi Mai against the same Haider Shah, the property called the kila situate in Khanpur was sold and purchased by the defendant-appellant. The plaintiff-respondent objected to the attachment and sale of the said kila in execution of the decree of Lakhi Mai, but his objection was disallowed. He then brought the suit out of which this appeal has arisen, for a declaration that the plaintiff-respondent by virtue of his purchase at auction sale is the owner of the share of Haider Shah in the kila situate in Khanpur. The defendant-appellant resisted the claim on the ground that all that the plaintiff-respondent had purchased at the auction sale, was the zemindari share of Haider Shah. The objection of the appellant was disallowed by the lower Courts and the claim decreed. In appeal, the defendant repeats his plea and contends that all that was sold to and purchased by the plaintiff-respondent at the auction sale of 21st March 1910, was the zemindari share of Haider Shah in Khanpur and that his interest in the kila was expressly Excluded from the sale. The Courts below have relied upon the ruling of Abu Hasan v. Ramzan Ali 4 A. 381. The facts of that case were that the rights and interests of a zemindar in a certain zemindari village were sold in execution of a decree. At the time of the sale, a certain building stood on the property of the judgment debtor, i.e., in the village that was sold. The question was whether the sale of the zemindari included the sale of the building also. It was held that in the absence of evidence showing that the building was excluded from the sale, the sale of the rights arid interests in the zemindari included the sale of the building also. The principle of the case of Abu Hasan v. Ramzan Ali 4 A. 381 cannot be applied to the present case, for the reason that there is evidence upon the record to show that the sale of the rights and interests of Haider Shah in Khanpur did not include his interest in the kila. The inventory of the property to be sold, filed by Lachhmi Narayan with his application for execution of decree, mentioned nine lots of property, the first of which was the zemindari share of Haider Shah and the ninth the kila situate in Khanpur. It was in accordance with this application of the decree-holder that the zemindari share of Haider Shah was brought to sale. The order of attachment and the order of dakhaldihani were drawn up in accordance with the inventory filed by the decree-holder, vide papers Nos. 180, 17D, 131, 141, 153. These documents show that the sale of 21st March 1910, did not pass the interest of Haider Shah in the kila to the plaintiff-respondent. I would, therefore, allow the appeal.
2. I fully agree with my learned brother. Neither the precedent of Abu Hasan v. Ramzan Ali 4 A. 381 nor that of Banke Lal v. Jagat Narain A.W.N. (1900) 31 : 22 A. 168 are safe guides in the present case. In the properties which were put to sale, the zemindari share without any specification' was sold in the former and in the latter the sale-notification distinctly described the property sold as being 20 his was with gardens belonging to Ram Sarup and Piare Lal. The respondent cannot show in this case the sale-notification. This is unfortunate and as it was one of the documents upon which his claim rests, if it had been in his favour, he should have taken pains to have it produced and placed before us. The dakhalnama and the sale-certificate upon which he relies, are vague in their terms. Even if we take them as they stand, they do not show that the Mia was sold. The lower Courts should have seen to the production of this document. The sale-notification is a most important document, as I have repeatedly pointed out in several of my judgments, 'when a Court wishes to find out what was sold. I do not think that the lower Courts were justified in arriving at the finding at which they did.
3. Order of the Court is that this appeal is decreed with costs including fees in this Court on the higher scale.