BROJO NATH SAHA Vs. DINESH CHANDRA NEOGI

JUDGEMENT

(1.) The plaintiffs and defendants Nos. 1 to 4 are co-sharers in a certain revenue paying estate. On the 23 Chaitra 1292, Annada Sundari Dasya, the mother of defendant No. 4, executed what is headed as a kobala of out and out sale of land in favour of the plaintiffs. These lands were khamar lands, and they were specified by the vendor who described herself as owner in possession with power and right to make gift or sale of a certain fractional share in the mahal within which the khamar lands were included. Towards the end of the conveyance, there is a stipulation that the vendees would pay annually 5 1/4 annas as rajashya, Government revenue, of the land conveyed into the vendor's sarkar; in other words, the vendees would pay a certain sum of money which the vendor would be bound to remit to the Collector as revenue payable in respect of the land so conveyed. The plaintiffs were not registered as proprietors of the; lands in question. Thereafter, a partition was effected under the provisions of Act V of 1897 (B.C.), the proceedings ending in the year 1901. The plaintiffs did not secure their kobala lands in those partition proceedings, nor any land equivalent to their kobala lands. In fact, they were allotted to the share of defendants Nos. 1, 2 and 3. The plaintiffs brought their present suit to obtain either those identical lands or, in lieu of them, the lands which had been allotted to defendant No. 4.

(2.) The first Court decreed the suit giving the plaintiffs the lands which had been given to defendant No. 4, in lieu of the kobala lands. Various questions of fact were decided by the Munsif but, on appeal to the Subordinate Judge, the case turned on a simple issue, whether the kobala was or was not an out and out sale, and, in the opinion of the Subordinate Judge, the conveyance being of that description, the plaintiffs suit failed.

(3.) In second appeal, the substantial argument of the learned Vakil on behalf of the plaintiffs is that, on general principles, the defendant No. 4 cannot be allowed to retain a two-fold benefit, and that, in any case, the Munsif's decision is one which is in accordance with justice, equity and good conscience.