Malick, C.J. - (1.) THIS is a Defendants' appeal. The Plaintiff filed a suit for possession of certain properties detailed in the plaint. The Plaintiff's suit was decreed by the learned Civil Judge of Sitapur and the Defendants have filed this appeal.
(2.) VARIOUS pleas were taken in the written statement and a large number of issues were framed by the lower court. It is not necessary to go into all those issues as in our view the Plaintiff's suit must fail on a preliminary ground. Nawab Begum was the owner of the property. She was heavily indebted and on the 29th of December, 1904, she had borrowed a sum of Rs. 55,733/ 6/9 from one Baldeo Sahai on a mortgage Ex. 7. One of the items of the property included in the mortgage was a house in Bavarchi Tola and the mortgage deed was registered in Lucknow. Interest on this mortgage and on another debt had mounted up and on the 15th of October, 1936, Nawab Begum sold a half share in the zamindari property and a half share in the house in Baverchi Tola to the Plaintiff Buniyad Husain for Rs. 500/ - only. In all a sum of Rs. 40/ - was paid before and at the registration and Rs. 400/ - were left in the hands of Buniyad Husain for expenses of litigation. The sale deed provided that he had to meet any further expenses that may be required and for which Nawab Begum will not be responsible. This sale deed was also registered in Lucknow and a half share in the house in Baverchi Tola, Lucknow, was included in it; the rest of the property was situated outside Lucknow.
(3.) ON the 20th of October, 1936, Nawab Begum applied under Section 4 of the Encumbered Estate Act. Buniyad Husain acted as her pairokars in the Encumbered Estate Act proceedings. In the application under Section 4 of the Encumbered Estates Act no mention was made either of the transfer of a half share of the property to Buniyad Husain or of the house in Baverchi Tola, Lucknow. On the 14th of January, 1937 her written statement under Section 8 was filed through Buniyad Husain and in this the house was shown as one of the item of property belonging to her and it was also mentioned that she had transferred half of the property to Buniyad Husain. On the 14th November, 1937, Nawab Begum died leaving two daughters Wazir Jahan Begum and Anjuman Aar Begum, as her heirs and legal representatives and their names were brought on the record of the case before the learned Special judge in place of the name of Nawab Begum. The Plaintiff, Buniyad Husain, became their General Attorney and a general power of attorney was executed in his favour on the 22nd of January, 1938. On the 18th of January, l939, Chandrika Prasad creditor applied that a half share in the property had been sold to Buniyad Husain and he was therefore, a co -debtor and a necessary party under Section 9(5)(a) of the Encumbered Estates Act and he should be impleaded. Notice of this application was issued to Buniyad Husain and was served on him on the 27th of January and on the 30th of January, 1939, the application was granted ex -parte and Buniyad Husain was thus impleaded as a party to the proceedings before the learned Special Judge.;