SHIB KISTO DAW Vs. SHEIKH ABDUL SABHAN CHOWDHRY

JUDGEMENT

(1.) This was a suit to obtain possession of 1019 bigas of mal and lakhiraj lands, by the enforcement of a bynaputra, of date the 31st December 1862. The suit was instituted on the 19th April 1864, and was carried for the first time to this Court in Regular Appeal, No 100 of 1865.

(2.) The defendant in the first instance denied the bynaputra altogether, but this Court found against him on that point, and remanded the case to the lower Court, with these remarks, viz., that the plaintiff was "entitled to specific performance of his contract, and to obtain possession of the disputed estate on paying down the correct amount of consideration-money unless the co-defendant can show a better title" and lower down in ids judgment, the Court directed that the case should be remanded, in order that the lower Court might, after proper enquiry, fix the amount of consideration-money due from the plaintiff under the terms of his deed, and award him possession, that is, possession of the disputed estate, on payment of that sum.

(3.) Accordingly, on remand in its decision of date the 13th August 1866, the lower Court directed that, in modification of the claim, the plaintiff should obtain possession of 836 bigas odd, on payment of a certain sum of money specified in the decree. But this decision was reviewed by the lower Court on the 26th August 1867; and in the judgment on review the lower Court directed that the plaintiff should obtain possession of 1,015 bigas odd of land, and it found that, so far from there being any thing due from the plaintiff to the defendant, there was a surplus due from the defendant to the plaintiff; and the Court, accordingly, decreed that the defendant should pay that surplus to the plaintiff.