Judgement

Appeal (No. 99 of 1930) from a decree of the High Court (January 17, 1929) reversing a decree of the additional Subordinate Judge at Palamau (December 17, 1928).

The suit was instituted by the plaintiff-respondents claiming an injunction against the appellant restraining him from recovering possession of mauza Maran from them. The appellant having brought a suit in 1919 for arrears of rent of a tenure which included the village, obtained a rent decree, and the tenure was subsequently sold in execution under the Bengal Rent Recovery Act (VIII. of 1865) and purchased by the appellant. Objection had been raised that the decree, in execution of which the sale had taken place, was not a rent decree within s. 208 of the Chota Nagpur Tenancy Act, 1908, and that the sale was invalid. The Board of Revenue (upon appeal) dismissed the objection. The question for determination in the appeal was whether the sale was valid and whether the suit challenging its validity could be entertained by the Civil Court.

The facts and the material statutory provisions appear from the judgment of the Judicial Committee.

The trial judge held that the sale was valid and accordingly dismissed the suit. On appeal the High Court, by a judgment delivered by Das J. and concurred in by James J., held that the sale was invalid, and that as the rent decree was made without jurisdiction the suit was maintainable ; accordingly the suit was decreed. The appeal is reported at I. L. R. 8 Pat. 620.

1933. Jan. 12, 26. Sir Dawson Miller K.C. and Wallach for the appellant referred to Doolar Chand Sahoo v. Lalla Chabeel Chand (( 1878) L. R. 6 I. A. 47.) ; Bissessur Loll Sahoo v. Luchmessur Singh (( 1879) L. R. 6 I. A. 233.) ; Jeo Lal Singh v. Gunga Pershad (( 1884) I. L. R. 10 C. 996.) ; Profulla Kumar Sen v. Salimulla (( 1918) 23 C. W. N. 590.) ; Nitayi Behari Saha Paramanick v. Hari Govinda Saha. (( 1899) I. L. R. 26 C. 677.)

G. D. McNair for the respondents referred to Kesha Prasad Singh v. Shamnandan Rai (( 1925) I. L.

R. 5 Pat. 233.) ; Berardar Singh v. Bacha Mahto (( 1919) 5 Pat. L. J. 32.) ; Chamatkari Dasi v. Triguna Nath Sardar (( 1913) 17 C. W. N. 833.) ; Chandra Nath Tewari v. Protap Udai Nath (( 1913) 18 C. W. N. 170.) ; Jagan Mohan Sarkar v. Brojendra Kumar Chakrabarti. (( 1925) I. L. R. 53 C. 197 (F. B.).)

Feb. 14. The judgment of their Lordships was delivered by

LORD THANKERTON. This is an appeal from a decree of the High Court of Judicature at Patna, dated January 17, 1929, which reversed a decree of the additional Subordinate Judge of Palamau, dated December 17, 1925, and decreed the plaintiffs suit with costs.

The appellant, who is defendant No. 1 in the suit, is the proprietor of the Lokiya Narainpur estate, which includes villages Maran, Rouni, Bedra and an 8 annas share of Chowreah. The rule of primogeniture obtains in the appellants family. At some time prior to 1865 his ancestor made a khorposh grant to the ancestor of original defendant No. 2, of defendants Nos. 3 and 4, and of Maheshanand, the deceased husband of defendant No. 5. Original defendant No. 2 died pending suit and his two sons were substituted. Defendants Nos. 2, 3 and 4 had an 8 annas share in the khorposh subjects and Maheshanand had the remaining 8 annas share.

The contesting respondents in this appeal are the plaintiffs in the suit, and they are in possession of mokarrari rights in mauza Maran, which forms part of the khorposh lands, under leases executed in 1865 in favour of their predecessors in title by the predecessors in title of defendants Nos. 2, 3 and 4.

About 1910 Maheshanand died without issue but leaving a widow, defendant No. 5. The name of the latter was entered in the record of rights, which was completed in 1920, as the holder of an 8 annas share of the khorposh lands, but she did not take any steps to have her name entered in place of that of her deceased husband in the sarishta of the landlord, as prescribed by s. 11 of the Chota Nagpur Tenancy Act, nor did