Das Gupta, J. - (1.) This appeal raises a question about the validity of a sale held in contravention of the provisions of section 168A of the Bengal Tenancy Act. The appeal was first heard by Roxburgh, J., who, while rejecting the plaintiff-appellant's contention that the presumption of correctness of the settlement record has been rebutted, still held that the plaintiff had obtained by the sale in execution of a rent decree the right, title and interest of defendant No. 2 in the lands though they were not included in the holding in respect of which the sale took place, and that the sale, though held in contravention of the provisions of section 168A, was "certainly not void". On a review application before Chunder, J., to whom the learned Chief Justice sent the matter for hearing, review was allowed, the judgment and decree of Roxburgh, J., were set aside and the", appeal restored for hearing. The appeal has thereafter come up to this Bench for decision.
(2.) The first point raised by Mr. Panchanan Choudhury on behalf of the appellant-who it is to be remembered was successful before Roxburgh. J.-is that the review was wrongly allowed. We are clearly of opinion that it is not open to this Court to consider now whether the review was rightly allowed or not and we must proceed on the basis that the order passed by Chunder, J., allowing the review is legally valid and that the judgment and decree passed by Roxburgh, J., is no longer in force and the appeal has to be reheard.
(3.) The suit was in respect of two plots of land being dag Nos. 469 and 357 of Mouza Muktikiri. During the settlement operations Dag No. 469 was recorded as appertaining to a jama of Rs. 9 held by Defendant No. 2 Netai Malo under the defendants Nos. 3 to 6 of the present suit, while the other plot -dag No. 357-was recorded as appertaining to a jama of Rs. 2-6-6 held by Netai Malo under the predecessors of defendants Nos. 3-4. The plaintiff's case is that these records are wrong and that in fact both these plots appertain to a jama of Rs. 25-4 held by defendant No. 2, Nitai Malo under the plaintiff, and that the plaintiff acquired them by purchase in execution of a decree for rent. Both the courts below held that the presumption of the settlement record has not been rebutted and dismissed the suit.;