MOFAZZEL MONDAL Vs. ANACHHADDIN SARDAR

JUDGEMENT

(1.) This is the defendants' appeal against the judgment oi concurrence decreeing the plaintiffs' suit for declaration of title and joint possession. The plaint case is as follows : The suit property is comprised In Dag No. 1973 in Khatian No. 46 measuring 60 acres in P. S. Hanskhali in District Nadia. The suit land was settled by the landlord in 1926 by registered pattah to Moala Bux and Mahiruddi Mondal. The defendants are the heirs and legal representatives of Mahiruddi. After the death of Moala Bux his brother Jalil Mondal and on his death Fakir Chand inherited the property and had been in joint possession. Fakir sold the suit property to the plaintiffs by a kobala dated August 13, 1956, but as the plaintiffs went to take possession, they were prevented from taking possession by the defendants. Accordingly, the suit was filed on August 20, 1956 by the plaintiffs for a declaration of their 8 annas title and ioint possession with the defendants.

(2.) The suit was contested by the defendants Nos. 1 and 2 who filed their joint written statement stating that the settlement was, in fact, taken by Mohiruddi and Moala Bux had no title to it. This jama was sold in auction for arrears of rent and Mohiruddi instituted proceedings under Section 37-A of the Bengal Agricultural Debtors' Act before the Special Debt Settlement Board, Ranaghat and obtained return of the jama on the basis of the decree under the award and the decretal dues had been paid off. Moala Bux having no title. Jalil and thereafter Fakir obtained no interest in the property and never had any possession. The suit was. accordingly, misconceived, not maintainable in law and barred by limitation. The suit was tried on evidence before the learned Munsif who came to the finding that the settlement was taken both by Moala Bux and Mohiruddi, and, exclusive possession of Mohiruddi was not established. It was further held that the plaintiffs acquired 8 annas interest in the suit propertv and they were entitled to the reliefs prayed for in the suit. The suit was, accordingly, decreed.

(3.) An appeal was preferred by the defendant and the appellate court affirmed the findings of the trial court. A new point was taken in respect of the proceedings under Section 37-A of the said Act. Mohiruddi got back the property under the provisions of the award passed in the said proceedings and duly paid the amount under the award. According to the appellate court the title of Moala Bux was not thereby affected though possession was given to Mohiruddi by the Board. There was also no case of ouster or assertion of any hostile title by the defendants. Accordingly, the plaintiffs were entitled to the declaration and ioint possession prayed for in the suit. The present appeal is against the said decision by the appellants.