P L D 1965 (W (PLP)

(3) Whether the suit is barred under section 47, C. P. Code ? O. D. (4) Whether the plaintiff is estopped of being the present suit ? O. D. (5) Whether the suit is not maintainable in its present form ? O. D. (6) Whether the defendant has made any improvements, if so, how much and with what effects ? O. P. (7) Whether the plaintiff is the owner of land in dispute ? O. P. (8) Whether the plaintiff is entitled to the decree ? O. D. (9) Relief. After concluding the evidence produced by the parties, the learned trial Judge came to the conclusion that the suit brought by the plaintiff Mukarram Khan was barred under section 47, C. P. Code and so he found this issue against the plaintiff. He found issues Nos. 7 and 8 against the plaintiff for want of evidence, on the ground that there was no material on the record in support of the contention giving rise to these issues. Furthermore, these issues were also not pressed by the counsel for the plaintiff. He found issues Nos. 4 and 5 for the defendant. As a result of his findings on issues Nos. 3, 4, 5, 7 and 8, he dismissed the plaintiff's suit with costs, by his order dated 22‑6‑1963.

6. The plaintiff preferred an appeal. The learned Additional am District Judge, while discussing issue No. 3, observed :‑ " . . but his objection in this suit was that the mutation in question was in excess of what the defendant got by the Court Auction Certificate, that may not be given to him and instead that he allowed to stand in his (plaintiff's) name. Such question raised by him apparently did not come within the purview of section 47, C. P. Code as relating to the execution, discharge and satisfaction of the previous decree and therefore it could not be said that he was debarred from filing a separate suit on the subject." In support of his observations, the learned Additional District Judge relied upon Bulaki Das and others v. Kesri and others (A I R 1928 All. 363) and consequently, he held that the suit was not barred under section 47, C. P. Code and reversed the finding of the learned trial Judge on issue No.

3. He also reversed the findings on issues Nos. 5, 7 and 8, and by his order dated 5‑6‑1964, he accepted the appeal, set aside the judgment and decree of the Court below and remanded the case to him to decide issues Nos. 7, 8 and 9 afresh after recording additional evidence of the parties on these issues and also by appointing a commission to find out as to how much area the defendant purchased, through the Court Sale Certificate and then in view of the finding on other issues, which have been dealt with above, in the light of his fresh finding on these issues, decide the suit according to law.

7. The aggrieved defendant has come up in second appeal to this Court. Learned counsel for the appellant contended that the learned District Judge was wrong in coming to the conclusion that the suit was not barred under section 47, C. P. Code and, in his opinion, the authority relied upon by the learned lower appellate Court reported in A I R 1928 All. 363, was not applicable.

8. After hearing the learned counsel for the appellant at some length, I am of the opinion that there is some force in the contention of the learned counsel for the appellant. In A I R 1928 All. 363, relied upon by the learned Additional District Judge, it was held that mortgagee getting mortgagor's property sold in execution of his decree and purchasing it, the property not included in the mortgage is also sold, the suit brought by the mortgagor to recover possession of such property is not barred under section 47, C. P. Code. A careful perusal of the evidence on the record would show that the authority reported in A I R 1928 All. 363, is not applicable. The plaintiff‑respondent urged that he was the owner of I kanal 13 marlas in khasra No. 162, out of which 6 marlas underneath three houses was purchased by the appellant and the remaining I kanal 7 marlas, which was a vacant site, was never auctioned. If these things are taken into consideration and if it is held that 1 kanal 7 marlas of land, which is now in dispute, was neither auctioned, and nor it was the subject‑matter of the Court Sale Certificate and it was wrongly included in the sale mutation No. 768, then section 47, C. P. Code would not be a bar and A I R 1928 All. 363, would be attracted. The position, however, is not, as it is alleged by the plaintiff‑respondent. A reference to the Sale Certificate (Exh. P. W. 1/2), which deals with the boundaries of the property as given in the site plan (Exh. D. 6) clearly shows that out of the entire khasra No. 162, measuring 3 kanals 6 marlas, the defendant appellant had purchased one‑half share in Court auction and Sale Certificate was issued with respect to this very property. Sale mutation No. 768 is also based on the Court Sale Certificate and, therefore, it cannot be said that, in fact, 6 marlas of land was purchased by the defendant‑appellant, and I kanal 7 marlas of land was wrongly entered in the sale mutation.

9. The record shows that the defendant‑appellant had purchased 1 kanal 13 marlas, i.e., one‑half share in khasra No. 162 in the Court auction and that property was mutated in his favour. There is no substance in the contention of the learned counsel for the plaintiff‑respondent that only 6 rharlas in khasra No. 162 was the land underneath the three houses. A reference to the revenue record (1959‑60) would show that out of khasra No. 162, measuring 3 kanals 6 marlas, 2 kanals 18 marlas of land is ghair mumkin abadi and 8 marlas is nehri doim and so it follows that out of the share of the plaintiff‑respondent, 1 kanal 9 marlas is ghair mumkin abadi and 4 marlas is banjar qadeem. The Patwari who was examined as P. W. 1 deposed that 8 marlas out of the entire khasra number was shown as banjar qadeem since 1948.

10. The plaintiff‑respondent, besides himself and Abdul Ghaffar, did not produce any cogent evidence to show that only 6 marlas was underneath the three houses. I do not rely upon the statement of the plaintiff‑respondent, as he is interested, and Abdul Ghaffar (P. W. 2), besides being the nephew of the plaintiff‑respondent, had litigated with the defendant‑appellant, as he had objected to the sale of the property in favour of the appellant under Order XXI, rule 58, and after its rejection, he brought a suit under Order XXI, rule 63, which was dismissed and the appeal under that order was also dismissed. Although the Patwari was examined by the plaintiff respondent, yet he was not asked to state as to what was the area of the land, which was underneath houses.

11. Taking the evidence on the record into consideration, I am of the opinion that only that property, which was the subject matter of the sale was sold and the mutation was based on the Court Sale Certificate and thus no extra area was included in their mutation. In these circumstances, A I R 1928 All. 363, is not applicable, and the suit is thus barred under section 47, C. P. Code. 1, therefore, accept this appeal, set aside the judgment and decree of the learned Additional District Judge and restore that of the learned trial Judge and dismiss the suit with costs throughout. A. H./K. B. A. Appeal accepted.