BHUKHAL TEWARI Vs. RAMDAYAL SAH

JUDGEMENT

(1.) Both these revision applications at the instance of the auction-purchaser, are directed against the order of Mr. S. M. Ahmad, Second Munsiff, Chapra, allowing applications of the opposite party filed under Order XXI, Rule 100, Civil Procedure Code.

(2.) The facts relevant for the decision of the above two cases may shortly be stated as follows: The petitioner in execution of a mortgage-decree purchased the disputed plot and was given delivery of possession on the 25th of June 1949. On the 23rd of July 1949 two petitions under Order XXI, Rule 100 of the Code of Civil Procedure were filed before the executing Court, one at the instance of Ramdayal Sah and the other at the instance of Mts. Nabijan and Alijan. The case of the applicants as mentioned in their petition was that on the 20th of July 1949 while weeding the maize crop on the lands in question they were forbidden to do so by Bhukhai Tewari who informed them that he had purchased the land in execution of a mortgage decree and had been given delivery of possession over the same. The applicants were thus dispossessed by him. Thereafter, an inquiry was made and they came to know that Bhukhai Tewari had purchased the land in dispute at an auction-sale and was given delivery of possession on the 25th of June 1949. They further asserted that they cannot be ousted from the land in dispute, and prayed to be put back in possession of the same. The auction-purchaser resisted the claim of the applicants on the ground that the sale deeds of the year 1927 relied on by the applicants were farsi, fraudulent and without consideration, and that the property had all along remained in possession of the judgment-debtor, who had rightly been dispossessed by the delivery of possession and as such the applicants were not entitled to any relief at all. The executing Court after considering the evidence of the parties came to the conclusion that the applicants were in possession of the property in dispute in their own right on the date of the delivery of possession and that they should not have been dispossessed. On these findings the applications were allowed and the applicants were ordered to be put back in possession of the lands in question.

(3.) Mr. Sen on behalf of the petitioner contended that the application as framed was not maintainable at all under the provisions of Order XXI, Rule 100 (1), Code of Civil Procedure, which runs as follows: