RAM BARAI SINGH Vs. TIRTHA PADA MISRA

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of Title and recovery of possession. The suit has been decreed by both the Courts below. Hence this second appeal by the contesting defendant.

(2.) The suit was brought by the plaintiff-respondent on, inter alia, the following allegations, namely, that the suit lands were originally held by his predecessor Mahadev Singh on a tenancy under the admitted landlords Bejoy kumar Banerjee and others for a fixed term of five years from 1334 to 1338 B. S. The tenancy expired, but Mahadev continued to hold on with the landlords' assent, and upon his death, the tenancy devolved on his heirs Ajodhya and Kalika who -continued in possession till October 20, 1944, when it was sold to the plaintiff. Thereafter, the plaintiff brought a rent suit against defendant No. 1 Sreemati Fulkumari Devi who was in occupation of one of the rooms as a tenant under the plaintiff and his predecessors, but the said defendant No. 1 denied the plaintiff's title and set up title in defendant No. 2, the present appellant, and disclaimed all relationship of landlord and tenant between her (defendant No. 1) and the plaintiff, whereupon the rent suit was dismissed. On account of this dismissal,, the present suit had to be brought against the two defendants.

(3.) The suit was contested only by defendant No. 2 who claimed title to the suit lands as a tenant under the admitted landlords Bejoy Kumar Banerjee and others, his case being that, upon the expiry o Mahadev's lease from 1334 to 1338 B. S., he vacated the suit lands which were taken into khas possession by the landlord who settled the same with him (the contesting defendant No. 2) in or about 1340 B.S. The defendant also denied the story of holding over by Mahadev both on facts and as a matter of law, repudiating, inter alia, the Plaintiff's case of landlodds' assent to his (Mahadev's) alleged continuing in possession after the expiry of his original lease from 1334 to 1338 B. S., which fact of continuance of possessiaa was itself denied, as I have already stated above and the defence, accordingly, contended that Mahadev had no title at the material time, that is, at the time of his death, to transmit to his heirs Ajodhya and Kalika and the plaintiff got nothing by his kobala purchase of 1944, which kobala again was itself challenged as fraudulent, fictitious and collusive.