Judgement

WACHOO, J. : This is an appeal on a certificate granted by the Patna High Court. The respondents brought a suit with respect to ten plots of land and claimed a declaration that the property belonged to them and prayed for possession of the plots by ejectment of the defendants-appellants and for mesne profits. Besides the appellants, there was another set of defendants to the suit from whom the respondents purchased the property. The respondent s case was that the appellants had taken a loan from the other defendants on a mortgage bond on the basis of which those defendants instituted a suit in 1932. This suit was decreed against the appellants and thereafter the other defendants got the mortgaged property sold by auction in execution and purchased it themselves in 1936. Thereafter the other defendants entered into possession of the property delivery of which was made to them by court. The other defendants remained in possession of the property till they sold it to the respondents in 1943. Thereafter the respondents came into possession of the property. The appellants however began to create trouble from 1942. After the sale to the respondents, the appellants created further trouble which led to proceedings in a criminal court under S. 144 of the Code of Criminal Procedure and the appellants were forbidden from going to the property in dispute. Later on, the appellants were bound down under S. 107 of the Code of Criminal Procedure to keep the peace. In 1945 there was a murder in connection with this property on account of which some of the appellants were tried by the court of session but were acquitted. There were further troubles over the crop of these plots in 1945. Eventually after their acquittal by the court of session, the appellants took possession of the property by forcibly dispossessing the respondents. Consequently the respondents filed the suit out of which this appeal has arisen in July 1946.

2. The suit was resisted by the defendants are however not concerned now. The only point urged before us by learned counsel for the appellants is with respect to three plots out of the ten which were the subject matter of the suit. The trial court accepted the case put forward on behalf of the respondents and decreed the suit for possession and ordered that mesne profits would be determined subsequently. There was then an appeal by the present appellants to the High Court. The High Court dismissed the appeal except as to one plot with respect to which the suit of the respondents was dismissed. As the decree was at variance the High Court granted a certificate; and that is how the present appeal has come up before us.

3. We have already pointed out that the learned counsel for the appellants has confined his arguments before us with respect only to three plots, namely, 1060, 427 and 1128, out of the ten plots which were in dispute in the courts below. His contention is that in any case the courts below were wrong in granting possession to the respondents with respect to these three plots. We propose therefore to deal with the contentions raised in respect of these three plots only.

Re. Plot No. 1060.

4. The contention on behalf of the appellants with respect to this plot is that it was neither included in the final decree for sale in favour of the respondents predecessors-in-interest nor in the sale certificate. Therefore, it was not open to the courts below to grant a decree in favour of the respondents with respect to this plot. The final decree contains ten plots. It gives the Tauzi Number, the Khasra Number, the Thana Number, the Survey Number, the area and the boundaries of each plot. Among the ten plots mentioned in the final decree, there is a plot No. 160, but no plot bearing No. 1060. In the sale certificate also the same ten plots are mentioned. The sale certificate contains the khata number, the plot number, the area and the boundaries of each plot. There also we find No. 160 but no No. 1060. The High Court ha