INDU BHUSHAN ACHARYA Vs. SAILAJA SUNDARI BARMANYA

JUDGEMENT

(1.) The question for consideration on this appeal is whether the decree of the learned District Judge, so far as it set aside the first Court's preliminary decree for partition and the final decree confirming the partition effected by a Commissioner, and so far as it remands the suit for the purpose of giving the plaintiffs an opportunity to bring the heirs of Madhu Sundari on the record as parties, can be supported.

(2.) As to the facts, Sailaja Sundari, the defendant in the suit and respondent before us, and the deceased Madhu Sundari were co-proprietors in equal shares of the four jamas to which the suit relates. The plaintiffs, (the appellants before us) sue as tenants under the heirs of Madhu Sundari of the half share which belonged to her.

(3.) The history of the plaintiff's title as tenants is as follows. It appears that one Kali Nath Dutta, who was at one time the joint Manager of the two ladies, purchased the four jamas in his own name at a sale held in execution of a money-decree against the then tenants and was thereupon treated by Madhu Sundari as the tenant of the jamas. Subsequently Madhu Sundari obtained a decree against him for her share of the rent, and in execution of that decree the right, title and interest of Kali Nath Dutta in the jamas was sold at auction and purchased by Uttama Sundary, the mother and predecessor of the plaintiffs. Uttama Sundari was unable to obtain possession and instituted a suit to which Madhu Sundari and Sailaja Sundari were with others made defendants. In that suit there was a controversy raised by Sailaja Sundari as to the character in which Kali Nath Dutta had purchased the jamas, whether as benamdar for herself and Madhu Sundari or on his own behalf. In the result the suit was dismissed as against Sailaja Sundari but as against Madhu Sundari it was ordered that Uttama Sundari should obtain possession of a half share of the jamas as Madhu Sundari's tenant. The order to this effect in the judgment of the District Judge (Mr. Webster) before whom the suit came in appeal is quite clear.