YUSUF MONDAL Vs. JOYNAB BANU

JUDGEMENT

(1.) IN the suit, out of which this appeal arises, a prayer for declaration of the title and recovery of possession and injunction was made by the plaintiff. The plaint case was that the properties described in the schedule to the plaint originally belonged to one sri Md. Yusuf Mondal. He held the same at a jama of Rs. 74/1/- under the landlords Mahendra Nath Mukherjee, ramdas Mukherjee and Hooghly Trust limited. About 30 years ago Yusuf went to America without making any arrangement whatsoever for his landed properties and as such they lay follow and in consequence huge arrears of rent were accumulated in the landlord's sherista. It was further stated in the plaint that inspite of search for the tenant the landlords could not find yusuf and in 1344 B. S. the landlords brought the lands which remained as abandoned, into khas possession and possessed the same till 1348 B. S. : thus after possessing for about 4 years they settled the land to Ayub Ali Sarkar. The said settlement was made by mahendra Nath Mukherjee on the 28th chaitra, 1349 B. S. at a jama of Rs. 59-4 annas by means of an Amalnama. The other landlords also settled their shares with Ayub at a jama of Rs. 7-6-6 p. each. Since that settlement Ayub was possessing the lands all along and sometime in 1955 he was killed by some decoits leaving the plaintiffs as his sole heirs. It was further contended that the plaintiff became direct tenants under the State of West Bengal after the vesting in the year 1362 B. S. Some properties were recorded in the r. S. operation in the name of defendant No. 1 The plaintiffs preferred an objection under section 44 (1) of the west Bengal Estates Acquisition Act. The same was corrected though the defendant No. 1 was written in R. S. record of rights as in forcible possession in some of the properties. For the reasons stated the plaintiffs were forcibly driven out of the land in suit and as such they were compelled to file the suit in. question. According to the plaintiff, defendant No. 1 abandoned the suit property and his title was lost by adverse possession by the landlord under the provision of Article 3 schedule 3 of the Bengal Tenancy Act as well as by adverse possession by Ayub ali for more than 12 years.

(2.) DEFENDANT No. 1 did not appear in the trial court but defendant Nos. 2 and 3 who are his daughters sons entered appearance and contested the suit. In the lower appellate court however, defendant No. 1 figured as one of the appellants.

(3.) THE defence taken by defendant nos. 2 and 3 was that Md. Yusuf went to America in the year 1913 leaving behind his mother, wife, minor sons and a daughter. After his departure his properties were looked after by his mother and wife. In course of time however, the mother, his wife, daughter and minor sons all died. After their death defendant Nos. 2 and 3 who were minor sons of the daughter of Yusuf lived with their father in a different village Harat. Ayub Ali was a relation of defendant No. 1. He was entrusted by Yusuf to look after the lands on his behalf. Accordingly Ayub was looking after the land as trustee. The defendants stoutly denied that Ayub Ali took settlement of the lands from the landlords or that Yusuf ever abandoned the same. It was contended that Ayub Ali's possession, if any, must be construed to be the possession on behalf of Yusuf.