KESHAB CHANDRA CHOUDHARY Vs. LOKENATH JENA
HIGH COURT OF ORISSA
KESHAB CHANDRA CHOUDHARY
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Panigrahi, J. -
(1.) The point raised in this appeal relates to the correct interpretation of Schedule 1 (5), Oriasa Tenancy Act (Bihar and Oriasa Act II  of 1913, as amended by Orissa Act VIII  of 1938).
(2.) The plaintiff purchased .60 1/2 of an acre of land out of a holding measuring 1.45 acres, in execution of a mortgage decree against defendant 2 who was the occupancy raiyat of the holding no, 189 in Touzi no. 2484 belonging to defendants 3, 4 and 5 who are co-sharer landlords, in village Tiran. The plaintiff purchased four complete plots and an undivided half share in plot no. 580 on 15-5-40 Defendants 3 and 4 filed a rent suit against defendant 2 and put up the holding to sale in execution of the decree obtained in that rent suit. Defendant 1 purchased it at court auction on l5-5-41. The plaintiff thereafter on 17-9-41, filed the suit, out of which this appeal arises, praying for a declaration of his right and confirmation of possession and, in the alternative, for delivery of possession after ejecting defendant 1.
(3.) The plaintiff-appellant's case is that on the confirmation of the sale by the Civil Court he acquired an absolute right to the land, and any rent decree passed behind his back thereafter would not affect his title to the holding. The landlord-defendants 3, 4 and 5 remained ex parte and the suit was contested by defendant 1 alone. The contention of defendant l is that the sale in favour of the plaintiff on 15-5-40, in execution of his mortgage decree against defendant 2, may be ever so good, but would not be operative against the landlords until they receive notice of that sale, and that as they had not received any such notice of sale, contemplated in Section 31 (5) of the Act they were not bound to implead the plaintiff as a party-defendant in the rent suit and that, accordingly, the title acquired by defendant l by reason of his purchase at the rent sale would prevail over that of the plaintiff.;
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