Decided on December 05,1952



Sinha, J. - (1.) This is an appeal on behalf of the plaintiffs. The suit had been brought for declaration of title and recovery of possession in respect of lands covered by survey Khewat No. 1 situate in villages Bathaili Devi Jagtr and Khewat No. 1 in Kamalpur Jagir. According to the plaintiffs one Silanath Jha, ancestor or the defendants second-party, was the owner of these two tenures, and he also owned eight annas share in Kh-ewat No. 24 of Bathaili Dhanpat and other properties. Silanath Jha had executed a kebala in favour of Bankhandi. Rai, ancestor of the plaintiffs, in respect of the said tenures along with other lands on 7-2-1933, and after the purchase, the plaintiff's ancestor and thereafter the plaintiffs came in possession of the purchased lands including the lands in suit. One Bailsman Rai, ancestor of the defendants first party, had brought a money suit (Money Suit No. 20 of 1931) against Silanath Jha and his sons, the defendants second party, in which Bansman Rai had attached before judgment the share of Silanath Jha in the tenures aforesaid; and having obtained a money decree in that suit, put the decree into execution (Execution Case No. 6 of 1933) and purchased the properties in suit and eight annas share in khewat No. 24 at court auction sale on 1-1-1933. Bankhandi Rai, who had purchased the aforesaid properties by private transfer, filed an application under Order 21, Rule 90, Civil P. C. for setting aside the sale on 30-5-1933. On 18-11-1933, there was a compromise in the miscellaneous case under Order 21, Rule 90, Civil P. C., by which it was agreed that on payment of certain sum of money in two instalments by Bankhandi Rai, the sale would be set aside; and if there was any default in payment of the instalments, the sale would be confirmed. Bankhandi Rai made default, and the matter was put up before the executing Court on 29-5-1934, and on that date the. sale was confirmed. Bansman Rai, thereafter, took delivery of possession on 15-6-1934,
(2.) So far as khewat No. 24 was concerned, the landlord (Raj Darbhanga) had brought a, suit for rent (Rent Suit No. 2235 of 1932) against Silanath Jha and his sons. In execution of the decree for rent, khewat No. 24 was sold on 10-1-1934. and purchased by Satyanarain Rai, plaintiff No. 1 son of the said Bankhandi Rai. Satyanarain Rai took delivery of possession on 10-2-1936 dispossessing Bansman Rai and others, including one Jagatanand and Kaushalya Dai, a daughter of Bansman Rai. Jagatanand and Kaushalya Dai had taken transfer of a portion of khewat No. 24 previously. After the death of Bansman Rai, his sons and his widow brought title suit No. 61 of 1936 for a declaration, that the decree obtained by the Darbhanga Raj was a money decree, that the execution which followed was a money execution and consequently the interest of the plaintiffs of that suit was not affected by the said sale, and for recovery oi possession, on the ground that Jagatanand and other part-transferees of khewat No. 24 had not been made parties to the rent suit or to the execution case. The trial Court held in that suit that the decree obtained by the Raj was a money decree and the execution was a money execution; but in spite of these findings, it dismissed the plaintiffs suit on the ground that the attachment made by Bailsman Rai in money suit No. 20 of 1931 was invalid and his title, therefore, could have no precedence over that of Bankhandi Rai, who had taken the kebala prior to the attachment referred to. There was an appeal against that judgment and decree" by the descendants of Bansman Rai, but the findings of the first Court were upheld and the appeal was dismissed. The plaintiffs in the present case contend that the finding in the said title suit about attachment in money suit No. 20 of 1931 being invalid is 'res judicata' and the defendants in the present suit are bound by that finding. It is alleged by the plaintiffs that the purchase of the suit lands by their ancestor on 7-2-1933, being prior to the purchase by the ancestor of the defendants on 1-5-1933, at the court auction sale, they are entitled to the declaration and to recover possession.
(3.) The defence is that the attachment before judgment in money suit no. 20 of 1931 was a valid attachment, and that the finding in title suit no. 61 of 193S in regard to the attachment is not 'res judicata', and further that the plaintiffs are estopped from challenging the sale in view of the fact that as a result of the compromise between Bankhandi Rai and Bansman Rai on 18-11-1933, the salf was held to be a good sale which was confirmed ultimately on 29-5-1934.;

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