1. This is an appeal on behalf of the plaintiffs in a suit for declaration of title to immovable property and for recovery of possession thereof. The plaintiffs found their claim on a purchase at a sale, held on 26th November 1906, in execution of a decree on a mortgage executed in their favour on 31st December 1899. The substantial question in controversy between the parties relates to the property which has vested in the appellants by virtue of that sale. The sale certificate, which was granted on 3rd July 1907, is in these terms:
“The proprietary right of the judgment-debtors, to wit, 2 annas pucca share out of 4 annas 11 gundas 3 cowries 3 krantis pucca share of the entire 16 annas pucca share of mauza. Bhagwanpur Bansi, original with dependency together with all dependent mauza appertaining to the said taluka and all the zamindari rights and kamat etc. lands, pargana Mulki, thana Teghra, District Monghyr, the towzi number whereof is 880 and Sadar jama payable for which is Rs. 262-8-0 the annual income of which is Rs. 150 and the estimated value whereof is Rs. 1,500 the sale whereof concluded in the name of the decree-holders purchasers who offered a bid for Rs. 2,000.”
2. The plain meaning of this description, if the words used are interpreted in their natural sense, is not difficult to ascertain. The property sold is a 2 annas pucca share of mauza Bhagwanpur Bansi, original with dependency together with the same share of all the defendant mauzas appertaining to the said taluka, that is taluk Bhagwanpur. But the appellants contend that the property they have purchased is a two annas share of the entire taluk Bhagwanpur. In order to establish this contention, they invite the Court to examine the description of the property given by way of security.
3. Now it may be conceded that the description given in the mortgage-bond is sufficient to cover a two annas share of taluk Bhagwanpur. But when we look to the subsequent proceedings, that is, the proceedings instituted for the enforcement of the security, we find that the property is not described in precisely the same terms as in the security bond. The plaint in the mortgage suit has not been produced; we have before us however the specification of the mortgaged property as given in the mortgage-decree and it may be fairly assumed that this specification was taken from the description annexed to the plaint. The property is described in the decree in these terms:
“Two annas pucca share out of 4 annas 11 gandas 3 cowries 3 krants pucca share of the entire 16 annas pucca share of mauza Bhagwanpur Bansi, original with dependency, together with all the mauzas appertaining to the said taluka.”
4. It is worthy of note that instead of the expression “taluka Bhagwanpur,” we find used the phrase “mauza Bhagwanpur.” But it need not be disputed that in spite of this alteration, the description as a whole has the same effect as the description in the mortgage-bond. When however we examine the application for execution of the decree, we find that the property is described in a different way. The description there is, “mauza Bhagwanpur Bansi, original with dependency together with all the dependent mauzas appertaining to the said taluka.” It will be noticed upon a comparison of this description with that given in the mortgage bond, that instead of “taluka” we have mauza Bhagwanpur, and instead of the comprehensive expression “the mauzas appertaining to the said taluka,” we have a restricted description, the “dependent mauzas appertaining to the said taluka.” There is no room for controversy that the effect of this description is to restrict the extent of interest to be advertised for sale. It has been strenuously argued however on behalf of the appellants that the Court ought to consider the entire proceeding and endeavour to ascertain the intention of the parties. In support of this proposition reliance has been placed upon the cases of Moula Buksh v. Kuruck Lal . [1867] 7 W.R 245.; William Bruce Manson v. Golam Kebria . [1871] 15 W.R 490. and Taranath Chuckerbutty v. Joy Soonduree Dabee . [1874] 21 W.R 93.. But these cases do not establish the broad proposition of law formulated by the appellants. No doubt, as pointed out by their Lordships of the Judicial Committee in Abdul Aziz Khan v. Appayasami Naicker . [1904] 27 Mad. 131., if a question arises as to the meaning of the sale certificate, in other words, if] there is a controversy as to the property which has passed, the Court is entitled to determine the question with reference to the whole proceeding. But, as was pointed out by Norman, J., in Moula Buksh v. Kuruck Lall, the vital point to determine is not merely what the decree-holder intended to put up to sale but also what the bidders understood was offered for sale. In other words, as observed by Lord Watson in the course of argument in the case of Pettachi v. Chinnatambiar . [1887] 10 Mad. 241., the test is what did the Court intend to sell and what did the purchaser understand he bought: see also Balwant v. Hirachand . [1903] 27 Bom. 334. and Tara Lal v. Sarobar . [1900] 27 Cal. 407..
5. What was actually offered for sale and bid for, is thus a mixed question of fact and law, to be determined upon a construction of the sale proceedings in the case. Now in the case before us, it is indisputable that an intending bidder, looking at the description in the sale proclamation, would infer, not that the entire taluk but only Mauza Bhagwanpur Bansi, asli and dukhli, together with the dependent mauzas in Taluk Bhagwanpur, was offered for sale. As was pointed out by this Court in Lalla Bissessur Dyal v. Doolar Chand . [1874] 22 W.R 181., evidence cannot be given to contradict the terms of a sale certificate, though evidence may be admissible to interpret the, terms of a sale certificate where they are ambiguous and stand in need of explanation. But what the appellants seek to do here is to contradict the terms of the sale certificate. The learned vakil for the appellants has in effect contended that the appellants ought not to be punished for an unintentional error on their part. We must however also consider the position of the defendants. They were entitled to have their property properly described for the purpose-of the sale. The proceedings before the revenue authorities further show that the income of the dukhli villages, if the asli villages are excluded, would make the price actually paid by the decree-holders fair value for the property. If the decree-holders were now permitted to turn round and successfully claim the asli villages as well, although they were not mentioned in the sale proclamation, the Court would practically assist the perpetration of a gross fraud on the judgment-debtors. In our opinion, the sale certificate has been correctly interpreted by the District Judge.
6. The question now arises, what is the right course, in this view, which should be adopted in this litigation. There is, no doubt, that the plaintiffs have throughout endeavoured to secure either the whole or nothing, they have not adopted a middle course. The result has been that there is no evidence on the record to show what the dukhli villages are and we are not in a position to make a decree for possession in their favour even with regard to such villages. The learned vakil for the appellants however has suggested that if the present suit is dismissed, the title of the plaintiffs may be practically extinguished as recourse to a fresh litigation may not be open to them. Under these circumstances, we think that the right course to adopt is to affirm the view of the District Judge as to the true meaning and effect of the sale certificate, but to allow the appeal and remit the case to the Court of first instance to enable that Court to determine, upon evidence to be adduced by the parties the properties, to which the plaintiffs are legitimately entitled in the view we take. There will be a declaration in the decree of this Court to the effect that upon a true interpretation of the sale certificate the plaintiffs are entitled to 2-annas pucca share out of 4-annas 11 gundas 3 cowries 3 krants pucca share of mauza Bhagwanpur Bansi, original with dependency and also a 2-annas share of all the dukhli mauzas appertaining to taluk Bhagwanpur, that is, mauzas which are purely dukhli, excluding such mauzas as may be both asli and dukhli. The burden of proof will lie upon the plaintiffs to establish where these dukhli villages lie. If the plaintiffs are able to satisfy the Court that there are such purely dukhli villages and that their situation can be identified, a decree will ultimately be made in their favour for such villages.
7. The decree of this Court is made conditional on payment of all costs of this litigation by the appellants to the respondents, the amount whereof will be specified in the decree. Such costs must be deposited in the Court of first instance within one month of the arrival of the record there. If the costs are not so paid, the suit will stand dismissed with costs in all the Courts.
V.B/R.K
8. Order reversed conditionally.