SUKHDEO Vs. DONGER

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for damages and for a perpetual injunction restraining the first two defendants from irrigating their fields from the well in dispute. The plaintiff himself is the decree-holder who held a simple money decree against, Dongar and others, but not against defendant 2, Narain Lal. In execution of that decree he attached the well in question and put it up for sale and it west purchased by Bhupal. Objections raised by the judgment-debtors that the well was a part, of their Occupancy, holding had been in a summary way ever ruled by the execution Court. The present plaintiff has not purchased the well from Bhupal. He has brought the suit against the judgment-debtor, Danger, as well as defendant; 2, Narain Lai. making Dhupal a proforma defendant. His case is that his predecessor Bhupal acquired this well under the auction-purchase, and the defendants were wrongly interfering with his possession and using water from it. Defendant 1 pleaded that the well was a part of his occupancy holding and its sale was void under the Agra Tenancy Act. The other defendant Narain Lal does not appear to have made any appearance at the trial. But both the Courts have dismissed the suit on the ground that the well being a part of the occupancy holding of defendant 1 was not saleable. The lower appellate Court has held that, the well is no doubt a part and parcel of the occupancy holding. This finding is a finding of fact and cannot be challenged in second appeal, unless it is vitiated by some error of law.

(2.) So far as the effect of this finding upon the plaintiff as against the defendant Narain Lal is concerned, the counsel for the appellant cannot urge that it is binding on him. Narain Lal was not a party to the previous execution proceeding and no order passed in that proceeding can, in any way, stand in his way. He is entitled to say that the property was not saleable and that therefore no interest passed to Bhupal and none has devolved on the present plaintiff. The plaintiff's claim as against Narajin Lal must therefore stand dismissed.

(3.) A difficulty has been created so far as Dongar's case is concerned by the circumstance that the execution Court, without going into the matter thoroughly, summarily, rejected his objection that the well was a part of the occupancy holding and ordered it to be sold and it was actually sold at auction and the sale was confirmed. Dongar did not choose to appeal from the order passed by the execution Court, nor did he get the auction sale set aside.