1. The plaintiffs in this case are the heirs of one Khadim Ali, the husband of plaintiff No. 1 and the father of plaintiffs Nos, 2 and 3. They sued for a declaration of their ryoti right to the land in suit as haying been purchased by Khadim Ali from the heirs of one Neyamat Ali. The plaintiffs also claimed khas possession of the lands with mesne profits.
2. Both the Courts below have granted the plaintiffs a decree, and the first defendant has appealed.
3. The facts are as follows: The land in suit belonged to Neyamat Ali. Neyamat Ali died, leaving two sons, Rajjab Ali and Fazul Rahman, three daughters, Kamaljan, Misri Jan, (plaintiff No. 1) and Aloke Jan, and a widow, Petan Bibi, as his heirs. A decree had been passed in favour of defendant No. 1 against all the heirs of Neyamat Ali. On the 9th of July 1904, four of those heirs, namely, Rajab Ali, Fazul Rahaman, Kamal Jan and Misri Jan purported to sell the land in dispute to Khadim Ali, the husband of Misri Jan. It has been found as a fact and we accept it that this was a bona fide purchase for value. On the same day, the 9th of July 1904, the defendant No. 1 applied for execution of his decree, and some time afterwards attached the land in dispute. The defendant No. 1 as such decree-holder had the property put up for sale and purchased it himself. He is now in possession, and hence this suit has been brought.
4. The only two questions before us on appeal are, firstly, whether the suit is barred under Section 244 of the Civil Procedure Code of 1882, and, secondly, if not, whether the plaintiffs are entitled to more than 12 annas of the property in dispute.
5. As to the first point, the learned pleader for the appellant relied on the case of Gour Sunder Lahiri v. Hem Chander Chowdhuri 16 C. 355 and Ishan Chandra Sarkar v. Beni Madhab Sirkar 24 C. 62 : 1 C.W.N. 36. Those cases, however, were distinguishable from the present in their facts. Those were questions relating to mortgaged property, and there can be no doubt that the purchasers in those cases were, as held representatives of the judgment debtors within the meaning of Section 244. So is also in the case of Akhoy Kumar Sur v. Bijoy Chand Mahatap 29 C. 813 where the decree related directly to the land purchased. This case, however, is entirely different. Here there was a simple money decree against the heirs of Neyamat Ali, in execution of which decree the property in suit was attached on the allegation that it was the property of Neyamat Ali and had descended to his heirs. It had, however, before the attachment been sold by those heirs or some of them, to a third party Khadim. He was, therefore, in no sense a representative of the judgment-debtor, inasmuch as the decree which was being executed had no relation to the property in dispute. That this is so is clear from the remarks of their Lordships in the case of Ishan Chander Sirkar v. Beni Madhub Sirkar 24 C. 62 : 1 C.W.N. 36 above cited; at page 71 of the report, they say: 'One thing, however, is clear; even if the word has either of the two comprehensive meanings and includes a purchaser of the interest of the judgment-debtor, such a purchaser must be one who is affected by the decree, but a purchaser of the interest of a party to a suit who is not affected by the decree cannot in any sense be regarded as a representative of that party within the meaning of Section 244'. That disposes of the first point.
6. With regard to the second point, there can be no doubt that the plaintiffs are only entitled to a decree in respect of 12 and of the land in dispute. The purchase by Khadim Ali was, as found, from four of the heirs of Neyamat who between them had inherited three-fourths of his property. The other daughter, Aloke Jan, who would be entitled to 2 annas, and the widow, who would be entitled to a similar amount, were not parties to that conveyance. The defendant No. 1, on the other hand, has purchased their interest at the auction sale.
7. The result is that the appeal must be allowed and the decree of the lower appellate Court must be varied. In place of that decree, there will be a declaration of the plaintiffs' right to 12 annas of the land in dispute, and a decree for joint possession along with defendant No. 1. The plaintiffs will also get mesne-profits from the defendant No. 1 proportionate to their share in the property--the amount to be determined in execution proceedings.
8. We can only give the plaintiffs joint possession with defendant No. 1 in this suit. The question of partitioning the property between the plaintiffs and the defendant No. 1 must be left to subsequent proceedings, unless the parties can come to some amicable arrangement.
9. As the appeal has only partially succeeded, we direct that each party will bear their own costs in all the Courts.