Bose, J—This is a suit to set aside the sale of a Malik-Makbuza plot No. 26/2 made under Section 157, Central Provinces Land Revenue Act of 1917.

2. The field was sold at the instance of defendant 2 who was the lambardar of the village in which the field is situated.

3. The appellant, who was defendant 1, is the auction-purchaser. The history of the plot is as follows. The original owner of this Malik-Makbuza plot and two other fields, which were khudkasht, was one Bhagwantrao. He mortgaged all three to four sets of persons, namely (1) Narayan, the present plaintiff 1, (2) the firm of Mansukhdas Pannalal whose owners were (a) Tejmal, (b) Harakchand, (c) Narayandas and (d) Khushalchand (the Narayandas No, (c) is not the same as the Narayan just mentioned.)(3) Jitmal and (4) Punamchand Agyaram.

4. In due course the mortgagees sued on their mortgage and obtained a foreclosure decree on 14th June 1932. They obtained possession on 1st November 1933: see Ex. P-2 (when I say they obtained possession, the one who took actual possession was Narayandas.)

5. From 1st November 1933 down to 16th December 1940 no land revenue was paid and so the lambardar had to pay what was due to Government. Having done this he initiated proceedings under Section 157, Land Revenue Act.

Though the fields were transferred to the mortgagees under their foreclosure decree no steps were taken to obtain mutation in the case of the Malik-Makbuza plot and Bhagwantrao continued to be recorded as the Malik-Makbuza down to the date of the auction sale in 1940.

Exhibits D-10 to D-15 are the relevant Jamabandis from 1933 to 1940.

6. The history of the Khudkasht plots in the revenue records is different. In the year 1934-35 they were re corded as the Khudkasht of one Ramrao (Ex. D 3). Then in the years 1935 36 to 1939-40 one of the mortgagees, Punamchand and one Khioraj were entered as the occupancy tenants of these fields {see Exs. D-4 to D-8). I have referred to Punamchand as one of the mortgagees. Actually of course he was now one of the owners because of the foreclosure decree in 1932, but it will be convenient to refer to these owners as the mortgagees throughout this judgment.

In 1940-41, the year in which the auction sale took place, three of the mortgagees, Jitmal, Narayan and Punamchand, along with two others, Harakchand and another Narayan, were recorded as the occupancy tenants (see Ex. D 9).

7. The revenue was not paid and the Lambardar had to pay it over to Government. In consequence the Lambardar instituted two separate cases under Section 157. The first was filed on 30-7-1937 (EX. P-12) for the land revenue of the year 1936-37 in connection with all three fields. Rupees 63-12-0 was claimed for the Malik-Makbuza field now in suit and Rs. 47 for the other two. The proceedings were against Jitmal alone.

8. Exhibit P-5 contains the order sheets relating to that case. It shows that various attempts were made to serve Jitmal, but he was not served till the hearing of 23-2-1937 and on that date the Lambardar asked that the R.R.C. be issued through the Deputy Commissioner. After that nothing further was done for some months.

9. In the meanwhile a second application, Ex. P-16, was filed on 26-7-1938. This related to to the Malik Makbuza field alone. The Lambardar sought to recover Rs. 63-12-0 for the year 1937-38. This also was against Jitmal alone.

10. The order sheets relating to this case will be found in Ex. P-7. Jitmal appeared on 8-9-1938 and said that he should only be made liable for one-third of the claim because there were two other co-sharers, Punamchand and Narayandas. The Lambardar was then told to amend his application and serve the other two. The application was amended (Ex. P-15), but the other two co-sharers could not be served and so an R.R.C. was ordered to be issued against Jitmal on 30-11-1938, and against the other two in their absence on 30-1-1939.

Nothing was done till 20-2-1940 and then the first case, Ex. P 5, was linked up with the second an