BISHNUPADA MONDAL Vs. DWIJABAR MONDAL

JUDGEMENT

(1.) THIS is the plaintiffs' appeal arising out of a suit for confirmation of possession and permanent injunction on declaration and establishment of their tenancy right in the suit land. The suit has been dismissed by the two Courts below and in this appeal the plaintiffs as appellants contend that the said dismissal is erroneous as, according to them, on a proper construction of the two documents, namely, the Kobala (Ex. 1) and the Kabuliyat (Ex. 2) it ought to be held that the said Kobala and Kaouliyat were parts of one transaction so that what was sold by the Kobala (Ex. 1) was only the superior on (or?) the landlord's interest in the suit land under the Kabuliyat (Ex. 2) and the principal defendant No. 1 Respondent got in his pre -emption case nothing more of the suit land than the said superior or the landlord's interest. This contention of the plaintiffs -appellants which has been rejected by both the learned Munsif and the learned Additional District Judge will have to be carefully examined in this appeal in the light of the submission made by their learned . Advocate.

(2.) THE suit land forming a part of the land comprises an area of .10 -1/3 decimals out of .31 decimals appertaining to the occupancy rayati holdings recorded in C.S. Dags Nos. 134, 139 and 141 of Khatian No. 10 of Mouza Chotto Monoharpur, District 24 -Parganas, and is mainly homestead. On 4 -9 -1943 it was apparently sold by the plaintiffs to pro forma defendant No. 2 along with some other lands, admittedly patitthe whole measuring .16 decimalsfor a consideration of Rs. 500/ - (Vide Kobala Ex. 1) and on the same day the Plaintiffs executed the Kabuliyat (Ex. 2) in favour of pro forma defendant No. 2 in respect of the suit land purporting to take a bemeadi lease of the same from the said pro forma defendant No. 2 as their landlord - The principal defendant No. 1 as a co -sharer of the occupancy raiyati holdings of which the suit land formed a part applied for pre -emption in respect of the sale made under the Kobala (Ex. 1) and succeeded in getting an order in his favour under Section 26F(5), Bengal Tenancy Act, against the vendee pro forma defendant No. 2 and, on the strength of that order, he attempted to disturb the plaintiffs' possession under the Kabuliyat (Ex. 2). Hence the present suit by the plaintiffs for declaration of their tenancy right in the suit land and for confirmation of their possession therein and also for a permanent injunction restraining the principal defendant No. 1 for (from?) disturbing such possession.

(3.) ON behalf of the plaintiffs -appellants Mr. Mitter has argued that the Kobala (Ex. 1) and the Kabuliyat (Ex. 2) formed parts of one transaction so that the effective sale, so far as 'the suit land was concerned, was not of the plaintiffs' entire interest therein but only of such interest minus the leasehold rights reserved in their favour by the Kabuliyat (Ex. 2), or, in other words, only the superior or the landlord's interest under the said Kabuliyat (Ex. 2) was actually sold by the Kobala (Ex. 1). In support of this argument, Mr. Mitter has strongly relied on the decision of the Judicial Committee in the case of 'Ramarayanimgar v. Maharaja of Venkatagiri', 31 Cal W N 670 (PC) as also on the decision of this Court in the case of 'Mahmed Yakub v. Hamid Ali', 55 Cal 104. In my opinion, however, none of the said two decisions is of any assistance to Mr. Mitter's clients and neither of them is any authority for holding in favour of his contention,