Judgment

PALEKAR, J.: This is an appeal by special leave from the judgment and decree passed in Second appeal by the High Court at Calcutta. The appeal arises out of a suit filed by the original plaintiff Aswini Kumar Mandal for declaration of his title and for possession. The property involved is 10 Cottahs in extent recorded as plot No. 571 of Khatian No. 649 of Mouza Belgachia Kismat in the District of Howrah.

2. The said property formed part of one holding. The other part comprised plot no. 570 Khatian no. 558 with which we are not immediately concerned. The holding originally belonged to the Bagchis who sold it to one Purushottam Sonar on 21-9-1972 for a consideration of Rs. 800/-. On August 28, 1928 Purushottam Sonar mortgaged the property to a firm named Shewpujanrai Indrashankarrai. Shewpujan enforced the mortgage and a preliminary decree for sale was passed in his favour on June 21, 1931. The decree was made final the same year and in execution of the decree the holding was purchased in court auction by Shewpujan on January 11, 1932. Possession was supposed to be taken on March 3, 1932. Aswini Kumar Mandal purchased the holding from Shewpujan on 9-8-1949. That is the title on which the plaintiff filed the suit.

3. It would appear from the records of the case that the holding was surveyed under the Bengal Tenancy Act sometime in 1939 and so far as the present suit is concerned plot no. 571 of Khatian no. 649 was shown to be in the possession of Purushottam Sonar. Objections had been raised to the entries made in the records of rights at the time of the survey on behalf of Shewpujan but the objections were rejected and the name of Purushottam Sonar was confirmed in the records of rights as being in possession. The High Court agreeing with the finding of the First Appellate Court has held that in spite of the property being purchased in auction by Shewpujan in 1932 the possession of this plot continued to be with Purushottam Sonar. The landlords were Sarat Kumar Roy and another and though the record of rights shows that Purushottam Sonar was recorded as Dhakalkar paying a rent of Rs. 2/2/- per annum it does not appear that any rent was paid. So the landlords brought rent suit No. 351 of 1945 against Purushottam Sonar for recovery of rent and obtained an ex parte decree. In execution of the decree the property was sold in court auction and was purchased by defendant no. 1, Fani Bhusan Kundu. The court put him in possession on 13-12-1946. Shewpujan and Purushottam Sonar filed applications under Section 174 of the Bengal Tenancy Act for setting aside the sale. Ultimately the applications were rejected. In the meantime defendant no. 1 Fani Bhusan found that One Hossaini Box was in possession of about halt a Cottah out of the plot. Fani Bhusan filed a suit against Hossaini Box and got possession of the whole plot. Thus when Fani Bhusan was in possession, plaintiff Aswini Kumar purported to purchase the property from Shewpujan in 1949.

4. Aswini Kumar sought to disturb Fani Bhusan s possession and thereupon proceedings were started under Section l45 Criminal Procedure Code. In the summary proceedings the Magistrate found that Fani Bhusan was in possession and hence on July 24, 1950 orders were passed restoring possession to Fani Bhusan. Thereupon Aswini Kumar filed the suit which was originally numbered as Suit No. 307 of 1950 but was subsequently tried as Title Suit No. 2 of 1955 of the Munsif court at Howrah. The suit was for a declaration of plaintiff Aswini Kumar s title and for an injunction or, in the alternative, for possession.

5. The High Court agreeing with the Appellate Court held that neither Aswini Kumar nor his predecessor in title Shewpujan had obtained possession of the property at any time. The possession was that of Purushottam Sonar in spite of his interest in the property being sold in the court auction in 1932. It was further held that the land was revenue paying agricultural land to which the Bengal Tenancy