Sir John Edge :-

These are three consolidated appeals. It will be convenient to dispose at once of the appeal in which Musammat Bibi Nabi Zohra is the appellant. That appeal is not supported, and, will be dismissed with costs.

In the other two appeals which will now be considered Rai Baijnath Goenka was the appellant; he is now dead, and is represented by his minor son through his mother and guardian, his next friend. These two consolidated appeals are from two decrees, dated the 24th April, 1917, of the High Court at Patna which reversed the decrees, dated the 22nd February 1916, of the Subordinate Judge of Monghyr, by which the Subordinate Judge dismissed applications by the respondents here or those whom they represent for the execution of a decree of the Subordinate Judge of Monghyr of the 30th June, 1904 which on the advice of the Judicial Committee of the Privy Council had by an order of His Majesty in Council of the 3rd February 1915, been restored, except as to villages Matasi and Mirzagunj.

In order that the questions in dispute in these appeals may be understood, it is necessary to refer briefly to some facts and to the history of the litigation in which these appeals have arisen.

Mahal Bisthazari, in the District of Monghyr, which included 360 villages, was jointly owned by a number of persons, including the respondents or those whom they represent. The owners of the specified but undivided shares had applied for and obtained from the Collector a separation of accounts under Act XI of 1859. There was left a large area of the Mahal called the ijmali or joint share the owners of which remained jointly liable for the revenues due or to become due in respect of that area. The respondents or those whom they represent owned in the ijmali share 14 annas 1 dam (Pucca) out of 16 annas (pucca) of village Lohara, and shares in village Padmaot and other villages. The revenue due in respect of the ijmali share was in arrear in 1901 and the ijmali share was sold by the Collector by auction on the 9th September, 1901, and was purchased by Baijnath Goenka, who was placed in possession as the purchaser. Applications to the Collector for the partition of Mahal Bisthazari had been made in 1876, and the proceedings to partition were continued under the Bengal Estates Partition Act, 1897. The partition had not been completed on the 9th September, 1901, but it had been completed before the decree of the Subordinate Judge of the 30th June 1904, was made in suit No. 596 of 1902.

In 1902 the respondents or those whom they represent and other share owners brought suit No. 596 of 1902 against Baijnath Goenka to have the sale of the 9th September 1901, set aside and to obtain possession, and the Subordinate Judge, by his decree of the 30th June 1904, set aside the sale and decreed possession and mesne profits in favour of the respondents, the mesne profits to be ascertained in execution. The Subordinate Judge, when he made that decree apparently had not been informed that the Collector had completed the partition, or indeed that proceedings for partition had been commenced. He made his decree in favour of each plaintiff or set of plaintiffs in the suit for possession of his respective share as if no partition had taken place. The shares specified in his decree are the shares to which the plaintiffs would have been entitled respectively if no partition had taken place, and section 26 of the Estates Partition Act 1897, was not in the decree complied with. Baijnath Goenka appealed from that decree to the High Court at Calcutta, and that High Court holding that the sale was valid by its decree of the 1st May, 1907, set aside the decree of the 30th June, 1904, of the Subordinate Judge. From that decree of the High Court at Calcutta, the respondents appealed to His Majesty in Council. That appeal to His Majesty in Council came before the Board in 1915 and the Board taking the same view of the irregularity and invalidity of the sale of the 9th September 1