The non-service of notice under Order 21, Rule 22 of the CPC rendered the sale void and not merely voidable.

K.Ahmad, J.

1. Both these appeals arise from the same judgment and decree, dated 24-2-1940, given by Mr. Bhagwan Prasad, Subordinate Judge, 1st Court Monghyr, First Appeal No. 208 of 1949 is by the defendants and is directed against that part of the decree which grants relief to the plaintiff as to his prayer for declaration of title and recovery of possession while the other appeal, First Appeal No. 191 of 1949, is by the plaintiff and is directed against that part of the decree whereby the learned Subordinate Judge has dismissed his claim for mesne profits.

2. Originally there were two plaintiffs. The second plaintiff was the receiver of Raj Banaili estate. Subsequently on an application made by Raj, he was permitted to withdraw and the suit was allowed to proceed on behalf of plaintiff No. 1 alone; while on the other side there have been all long two sets of defendants -- defendants first party, a joint Mitakshara family represented by defendant No. 1 as their karta and manager and the defendant second party one Amarendra Bhusari Banerji, who, as alleged by the defendants first party and admitted by him, is only their farzidar. Thus, the controversy in this case is mainly between plaintiff No. 1 on one side and the defendants first party on the other.

3. The subject-matter of dispute is an agricultural holding having an area of 34.47 acres equivalent to 60 bighas, 14 kathas and 8 dhurs recorded in the survey record-of-rights in khata Nos. 205, 109 and 239 of mouza Karhariya in the district of Monghyr and the controversy centres round the point as to who is the present raiyat of that holding, or, more precisely and correctly, as to whether the plaintiff is the raiyat of it and is as such entitled to a declaration of his title and recovery of possession.

4. It is the admitted case of the parties that at all relevant time before the vesting of the estate in the State of Bihar, wherein the holding; lies, its landlord was Raj Banaili and that originally the holding had been settled by the Raj with the defendant second party Amarendra Bhusan Banerji though with this difference, which I think on the facts of this case is not of any vital importance, that according to the plaintiff he was the real settlee while according to the defendants first party he was their farzidar only. That means, at the inception, of the tenancy the plaintiff No. 1 had no interest in it. But his case is that after that settlement the rent of the holding fell into arrears and, therefore, the Raj had to institute a suit for rent (Rent Suit No. 1050 of 1936) against the defendant second party which was decreed on 9-10-1936, and in execution of that decree in Rent Execution Case No. 42 of 1938, which was also directed exclusively against the defendant second party, the holding was sold and auction purchased on 6-4-1938, by the landlord decree-holder himself for a sum of Rs. 736-15-0 and odd.

So the landlord, it is said on the basis of that sale, which was confirmed on 6-5-1938, got delivery of possession on 29-2-1940, and thereafter having remained in possession for sometime ultimately settled the same with the plaintiff on a rental of Rs. 121-4-0 besides cess and a nazarana of Rs. 875-5-3 under a registered kabuliat dated 21-6-1943, executed by plaintiff No. 1 alone. The claim of the plaintiff is that he thus came in possession of the same but while he was in pos- session as such the defendants first party begjan interfering with his possession which ultimately led to a proceeding under Sec.144 of the Code of Criminal Procedure but the order passed thereunder on 8-2-1944, was unfortunately against him and so he was thereafter dispossessed completely from the holding and hence the suit by him on 12-6-1946, for declaration of title and recovery of possession as also for mesne profits.

5. All these claims have been strongly contested by the defendants first party as also by the defendant second party, though by the latter not in the form of any written