TARAPADA MANDAL Vs. HAJIA KHATUM BIBI

JUDGEMENT

(1.) This second appeal by the defendants arises from a suit by respondent 1 Hajia Khatun Bibi for a declaration of her title to the land in suit to the extent of 8 annas share and for joint possession thereof along with defendants 1, 2 and 3.

(2.) The facts as far as they are admitted or beyond dispute are briefly that the disputed land belonged originally to Abdur Rahaman, father of the plaintiff Hajia Khatun. Abdul Kasem was a brother-in-law of Abdur Rahaman. On 13-6-1933 Abdul Kasem and Abdur Rahaman executed an Instalment mortgage bond, of which a certified copy is Ex. 2, in favour of Surendra Nath Mandal, defendant 2. Abdur Rahaman died on 19-3-1936, corresponding to the 5th Chaitra, 1342 B.S., leav ing a widow and two minor daughters, viz., the plaintiff and pro forma defendant 3 Rajia Khatun. Abdul Kasem died in 1343 B.S. It is the plaintiff's case that after Abdul Kasem's death when defendant 2 pressed the plaintiff's mother for payment of his dues on the mortgage there was an adjustment in the presence of the villagers to the effect that defendant 2 would be placed in possession of the land mentioned in schedules Ka and Kha and he would be in possession from 1343 to 1349 B.S. and the entire mortgage debt would be satisfied out of the usufruct of the land for this period. Defendant 2 was accordingly placed in possession, and he has been in possession for that period and the mortgage debt has been satisfied out of the usufruct. It is further the plaintiff's case that when she asked defendant 2 to return her share of the disputed land in Baisakh, 1350 B.S. he did not agree and the husband of the plaintiff had, therefpre, to go to the Debt Settlement Board. During the pendency of the case- before the Debt Settlement Board defendant 2 had filed an objection that Rahaman had sold the land to him during his life time. Ultimately, the case before the Debt Settlement Board came to nothing and the parties were referred to the civil Court. The suit was contested by defendants 1 and 2, defendant 1 being the son of defendant 2. They deny the plaintiff's allegation regarding the adjustment of the mortgage debt by putting defendant 2 in possession of the disputed land and it is their case that Rahaman himself sold the disputed land to defendant 2 for a consideration of Rs. 660/- and put him in possession in 1340 B.S. and defendant 2 has acquired a right to the disputed land by adverse possession but no kobala. was executed as Rahaman's fund did not permit it and as Rahaman suddenly died. It is further their defence that the other daughter of Rahaman, viz., Rajia acknowledged this fact by executing a kobala In Palgoon, 1349 B.S. The learned trial Court, held that the defence story of Rahaman having sold the disputed land to defendant 2 could not be proved and that the recital in Rajia Khatun's kobala in favour of defendant 2 to the effect that her father had sold the land to defendant 2 does not bind the plaintiff at all, particularly when in the kobala the plaintiff was mentioned as a co-sharer. As regards the plaintiff's case also the learned trial Court holds that the plaintiff could not by satisfactory evidence prove her case regarding the alleged adjustment of the mortgage debt. But from the facts that Rahaman's possession up to the date of his death, i.e., till Chaitra, 1343 B.S., was admitted by the defendants' witnesses and that as late as Palgoon, 1349 B.S. notice was served upon the plaintiff as a co-sharer there can be no question as to Rahaman's title to the land so that the plaintiff was entitled to succeed to 8 annas share as one of the two daughters of Rahaman unless the defendants could establish a better title or show that the plaintiff's title had been extinguished, and the defendants having failed in both the plaintiff's suit was decreed in part to this extent that her title to 8 annas share of the suit land was declared and she was given joint possession to the extent of her 8 annas share with defendants 1 and 2. On appeal by defendants 1 and 2 the appellate Court holds, in the first place, that defendants 1 and 2 completely failed to prove that Abdur Rahaman transferred the disputed land to him during his life time and he believed the plaintiff's witnesses as regards the plaintiff's story of adjustment of the mortgage debt. Before him there was a plea of limitation and it was held by him that the suit was not barred by limitation. On these findings the judgment and the decree of the trial Court were confirmed.

(3.) On behalf of the appellants it is argued in the first place that the suit was in reality a suit for redemption and as such it was bad because the plaintiS in effect asked for a partial redemption of the mortgage. It is next argued that the suit is bad for defect of parties because the heirs of Abdul Kasem have not been made parties to the suit. It is further argued that Section 92, Indian Evidence Act is a bar to the admission of oral evidence to prove the alleged adjustment of the mortgage. It was further contended on behalf of the appellants that the plaintiffs could not succeed without a suit for partition.