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Krishna Gopal Bhowmik and anr. and Vs. Hem Chandra Bairagi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in46Ind.Cas.908
AppellantKrishna Gopal Bhowmik and anr. and ;ichhamayi Debi
RespondentHem Chandra Bairagi and ors.
Excerpt:
execution - sale certificate, particulars given in, whether can be corrected by reference to boundaries given in plaint--accretion, suit for--finding that accretion took place before execution sale in which plaintiff purchased, effect of. - .....that an order attaching the land under section 146, criminal procedure code, may be set aside. the suit was decreed by the munsif but dismissed on appeal by the district judge. an appeal by the plaintiffs to this court was allowed by d. chatterjee and walmsley, jj., but that judgment was set aside by walmsley, j., on review and the appeal restored to the file, it is noteworthy that the grounds on which the review was granted have not been pressed before us, but the case has been re argued on much the same lines as at the former hearing. it is now conceded that no question arises as to section 4 of regulation xi of 1825 as put forward in ground (7) in the application for review. the real question is whether the lands in dispute were included in the auction-sale of 1903 at which the.....
Judgment:

Charles Chitty, J.

1. This is an appeal by the plaintiffs and arises out of a suit brought by them to recover khas possession of certain land, on a declaration that it is contiguous accretion to raiyoti jamai land held by them and that an order attaching the land under Section 146, Criminal Procedure Code, may be set aside. The suit was decreed by the Munsif but dismissed on appeal by the District Judge. An appeal by the plaintiffs to this Court was allowed by D. Chatterjee and Walmsley, JJ., but that judgment was set aside by Walmsley, J., on review and the appeal restored to the file, It is noteworthy that the grounds on which the review was granted have not been pressed before us, but the case has been re argued on much the same lines as at the former hearing. It is now conceded that no question arises as to Section 4 of Regulation XI of 1825 as put forward in ground (7) in the application for review. The real question is whether the lands in dispute were included in the auction-sale of 1903 at which the plaintiff's predecessor, Ananda Chandra Bhowmik, was admittedly the purchaser. The facts now admitted or found and as to which there is no dispute are as follows:

2. In 1290 (1883) a jama of 22 1/2 bighas was found in favour of Sadek Sheikh at an annual rent of Rs. 25-2. These lands were held by Sadek and after him by his heirs Hanif Sheikh and others. Against them in 1903 the 10-anna 8-pies maliks brought a suit for their share of the rent and obtained a decree. In execution the 2/3rd share of the jama was brought to sale and purchased by Ananda Chandra Bhowmik. About the same time the 5-annas 4-pies maliks obtained a decree against Hanif Sheikh and others in a title suit (No. 1506 of 1902). In execution of that decree the whole jama was brought to sale and purchased by Khetra Nath Mozumdar, husband of Ichhya Moyi Debi, plaintiff-appellant in Second Appeal No. 3747 of 1913. The purchasers at these two sales came to terms and the rental and area of the jama were divided between them in the proportion of 2/3rds and l/3rd. It should be stated that the lands now in dispute had accreted to the jamai lands some time before the auction sales of 1903. It should also be borne in mind that the decrees above mentioned being money decrees only, the right, title and interest of the judgment debtors in the property sold passed to the purchasers. The Munsif held that that included the accreted lands now in dispute. The District Judge on appeal was of the opposite opinion. The only question in the case is whether or not the lands in suit passed by the sale. The records of the execution cases of 1902 and 1903 have unfortunately been destroyed. All that we have before us is the sale certificates (Exhibits 13 and 14). No doubt in these the northern boundary of the lands sold is said to be the river Gorai but it is the northern boundry of 22 1/2 bighas and not of them plus the accreted lands. Though I do not think that the learned District Judge was right in correcting the particulars given in the sale certificates by the boundaries given in the plaint in the rent suit, I am unable to say he was wrong in concluding that what was sold was the 22 1/2 bighas and not the accreted land as well.

3. If the plaintiffs were to be given a decree for these accreted lands, it would not be for the reasons set out in the plaint. Though the date of the accretion is not distinctly stated in the plaint, it can only be read as alleging the accretion to have taken place after the plaintiffs' purchase, and they pray for a declaration that the disputed land is the contiguous accretion to the raiyati jamai land owned and held by them. It has been found that these lands re-formed many years before the plaintiffs' purchase, so that the plaintiffs are now making what is in effect a new case.

4. I am of opinion that the appeal should be dismissed with costs, including the costs of the first hearing and the review.

5. This judgment governs Second Appeal No. 3747 of 1913, in which a similar order is passed.

Smither, J.

6. I agree that these appeals should be dismissed with costs.


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