1. This is an appeal against a decree of the Subordinate Judge, 1st Court, Hooghly dismissing an appeal from a decree of the Munsif, 2nd Court, Chinsurah. The plaintiff has sued for declaration of his title to the lands in C. S. plots Nos. 469 and 357 of Mouza Muktikiri, and for confirmation of his possession to the same.
2. The plaintiff's case was that the plots in question appertained to a jama of Rs. 25/4/-held by defendant No. 2 Nitai Malo under the plaintiff. The plaintiff had purchased the lands in question in execution of that decree on April 21, 1941 and obtained possession on August 30, 1941.
3. After his purchase, and after he obtained possession, a sale proclamation had been issued at the instance of defendant No 1 with respect to two plots Nos. 469 and 608 in execution of mortgage decree obtained by defendant No. 1 against defendant No. 2. Accordingly on. August 26, 1943 the plaintiff first learnt of the mortgage of defendant No. 1 covering plot No. 469. Thereupon, he had a notice issued under section 167 of the Bengal Tenancy Act to annul the incumbrance. He had also filed a case (Title Execution Case No. 109 of 1943) for avoiding the sale of plot No. 469 and this application had been rejected on December 14, 1943. Hence the present suit as regards plot No. 469.
4. The record of rights shows plot No. 469 as appertaining to Khatian No. 32 of the Mouza, the landlords being defendants Nos. 3 to 6, the 'jama' being Rs. 9/-. It shows the other plot in suit namely plot No. 357 as appertaining to Khatian No. 15 of the same mouza under the predecessors of defendants Nos. 3-4 at a 'jama' of Rs. 2/6/6.
5. Both the lower courts have found against the plaintiff on his claim that the plots in question appertained to the 'jama' of Rs 25/4/-. In other words, they have found that he has failed to rebut the presumption of correctness of the entries in the record of rights. The courts have discussed the principal documents on which the plaintiff relies, viz., Ext. 3, 7 and 7(a) and the 'chitta', Ext. 2, plan, Ext. 4 and held that they are not sufficient to rebut the entries in the record of rights. Ext. 7 is a mortgage by the tenant which shows the plaintiff as the landlord. In Ex. 7(a) the plaintiff is also shown as the landlord of these lands. The documents in question have been discussed fully by both the courts and I see no reason for interfering with their finding that the evidence they provide is not sufficient to rebut the entries in the record of rights.
6. In that view then no question of annulment of the incumbrance under section 167 of the Bengal Tenancy Act arises.
7. But an aspect of the case does arise, which has not been considered by either of the lower courts viz., that even if the plots in question do not appertain to the plaintiff's 'putni', nevertheless he had obtained a decree against defendant No. 2 and in execution of that decree had certainly purchased these plots. In other words he has certainly obtained whatever right, title and interest defendant V.R.B. No. 2 may have had in these plots.
8. It was suggested that as the purchase was made after 1938 when the provisions of section 168A of the Bengal Tenancy Act had come into force, the landlord was not entitled to sell any land other than the actual lands of the tenancy. But this objection has no force. The tenant himsalf might have objected, on the basis of section 168A, that the lands in question could not be sold, but a sale held in contravention of the provisions of the section is certainly not void.
9. The result is that we have to consider the position that the plaintiff had certainly purchased the right, title and interest of defendant No. 2 in plots Nos. 469 and 357. Only the former plot is included in the mortgage of defendant No. 2 in favour of defendant No. 1 on which defendant No. 1 has obtained his decree.
10. In discussing point No. 2, the learned Subordinate Judge has, by confusing the plaintiff's claim that the plots' in question belonged to his 'putni' with the plaintiff's claim that he had purchased these plots in execution of his decree and obtained possession managed to find that the 'mere mention of these plots in Ex. 12 the sale certificate, cannot confer any title upon the plaintiff.' This evidently is quite fallacious. The plaintiff was entitled to sell any property of his judgment-debtor in execution of his decree, and although the mere mention of the plots in Ext. 12 would be no evidence that, before the sale and purchase by the plaintiff, the plaintiff had any title to the plots in question as 'putnidar', the document is conclusive to show that, as purchaser at the sale, he had acquired the right, title and interest of defendant No. 2, Nitai. The learned Judge tacks on to this a finding that the plaintiff's evidence with regard to possession of the lands as alleged by him is not worthy of reliance and thus cannot be believed. But the finding is entirely vitiated by the confused basis on which it seems to be founded. There can be no doubt that in execution of his decree and as purchaser he obtained possession of the plots in question as against defendant No. 2. The plaintiff is entitled to a decree accordingly.
11. The plaintiff was no party to defendant No. 1's mortgage suit. The position is that the purchaser in execution of the decree obtained by defendant No. 1 will not be entitled to possession as against the plaintiff, but he will be entitled to sue the plaintiff for enforcement, of the mortgage 'BIDHU RANJAN v. SOLEMAN PRAMANIK', ILR (1941) 2 Cal 209.
12. The result is that this appeal is allowed against defendant No. 1. The plaintiff's suit is decreed and he is entitled to a declaration that he has the right, title and interest of Nitai Malo (a) in plot No. 469 as appertaining to the 'jama' of Rs. 9/- in Khatian No. 32 of Mouza Muktikri under defendants Nos. 3 to 6 and (b) in plot No. 357 appertaining to a 'jama' of Rs. 2/6/6 in Khatian No. 15 of the same mouza under defendants Nos. 3 and 4.
13. The plaintiff is entitled to his costs throughout against defendant No. 1.
14. The suit is dismissed as against defendants 3-6.
15. Defendants Nos, 3 to 6 are entitled to their costs throughout against the plaintiff.