DWARKA DAS Vs. RAFIUDDIN

JUDGEMENT

(1.) This is a second appeal by defendant 1 Dwarka Das against concurring decrees of the two lower Courts in favour of the plaintiff. The facts as found are that there were five brothers, sons of Bandey Husain, a Mussalman, the plaintiff being a minor son. A decree was obtained by Dwarka Das, the appellant, against the four brothers who were of age, a simple money decree, in the Civil Court in original suit No. 221 of 1931. In execution of that decree the decree-holder attached 37 plots including those in dispute which stand recorded as occupancy tenancy of all the five brothers and a house and a well. Ex. 2 is a compromise which was filed in the execution Court on 25 May 1932 between the four brothers and the decree-holder. In this it was provided that until satisfaction of the decretal amount the plots in suit and the house and the well would remain attached. It was provided that instalments should be paid and in default of instalments that there should be sale of the property attached. There was default and an application for sale was made on 27 October 1934 and the property was sold on 19 December 1934 and purchased by the decree-holder, the appellant. On 12 August 1935, the present suit was brought by the plaintiff Rafi Uddin through his mother as next friend. The plaintiff had not been a party to the Civil Court decree or the execution proceedings. The plaintiff sued for a declaration that the attachment and sale of the occupancy plots and the house and well which were appurtenant thereto in execution of the decree of the appellant was illegal and void. Later, as possession had been taken by the appellant, the Court allowed the plaint to be amended and the relief for possession was added. The Courts below have granted the declaration and possession. It has been held by the Courts below that the house and the well were appurtenant to the holding and that the proceedings in execution sale were contrary to Section 23, Agra Tenancy Act, and that the plaintiff as a co-tenant can question the sale of the entire khata. It was further held that no compromise could be made by the four brothers in regard to the sale of the occupancy holding nor could such a compromise be enforced as it was contrary to Section 23, Tenancy Act. The appellant has filed an appeal asking that the suit of the plaintiff should be dismissed. In ground No. 1 he has urged: Because the judgment-debtors not having raised any question as regards the liability of the property in dispute to attachment and sale in execution of the appellant's decree, their shares at least were rightly sold and the appellant obtained good title to 4/5ths of the property in dispute.

(2.) It is to be noted that this case does not appear to have been argued before the Courts below. It is true that issue 4 has as part the question: "If so, in respect of only his share or of the entire property?" But there is nothing on the point in the judgment of the trial Court. Again, in ground No. 14 of the appeal to the lower Appellate Court it was stated: "Because the plaintiff was not entitled to sue and in any case for the whole property." There is nothing in the Appellate Court's judgment on this point, nor is this one of the points which the Court set out as the four points for determination in the appeal. In the High Court this point has been the main subject of argument and the contention for the appellant is that the plaintiff is only entitled to claim possession of 1/5 of the occupancy tenancy and that he has no right to claim possession of 4/5ths of the occupancy tenancy; that that portion of the occupancy tenancy belonged to his four brothers, that they consented to the execution proceedings and agreed by the compromise that that portion should be sold and that they are unable now to question the validity of that sale in the Courts and the plaintiff cannot question it.

(3.) At one stage it was argued by learned Counsel for the appellant that the interest of the four brothers was not extinguished and he was referred to the provisions of Section 35, Tenancy Act, for the extinction of tenancies. He argued that the tenancy would not be extinguished under that Section and would not be extinguished at all. It was then pointed out to him that in his ground of appeal No. 1 which he was pressing that he had claimed that the shares of the four brothers were rightly sold to the appellant who had obtained good title to the 4/5ths of the property and that there was an inconsistency between the argument that the appellant owned the 4/5ths share and that some right or title in that share remained with the four brothers. At this stage he admitted that the argument that the four brothers had any right or title in the tenancy could not be sustained. In this case therefore, on the admission that the four brothers had not retained any legal right in the tenancy it appears to me that the plaintiff is entitled to claim that he is the sole legal tenant in the tenancy and that he therefore has a right to sue to eject defendant 1 appellant on the ground that the appellant is a person who has obtained possession of the holding by an auction sale which is contrary to the provisions in Section 23(1), Tenancy Act, and therefore as the Section states that the interest of an occupancy tenant is not transferable in execution of a decree of a Civil or Revenue Court the plaintiff can claim that the appellant is merely a trespasser.