(MAHAMAD) MEHDIALI KHAN PANEE, MINOR BY HIS NEXT FRIEND MAHAMED HAIDAR ALI KHAN PANEE Vs. BASIRUDDIN CHOUDHURY

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff for declaration of his title to a certain share in the land in question and for khas possession. The land in suit is an occupancy holding belonging originally to three brothers. The defendant No. 1 in the suit is the purchaser of the interest in the holding of two of the brothers and of one of the two sons of the third brother. Plaintiffs case in the first Court was that this transfer by way of sale of a large share of the occupancy holding had been followed by a repudiation of the tenancy and that in consequence he was entitled to re enter in his share in the superior interest.

(2.) Both the Courts below have dismissed his suit and in the appeal that he has preferred to this Court his contention before us is that defendant No. 1 having repudiated his tenancy under him, the co-sharer landlord, he is entitled to obtain khas possession in accordance with his share in the interest purchased by defendant No. 1 in the holding. We are of opinion that this contention must fail. The remaining original tenant Subal is still in possession of his share of the holding. He certainly has not repudiated the tenancy, nor have the other original tenants from whom the defendant No. 1 purchased, and all that the defendant No. 1 himself has done is to put the plaintiff to proof of his title, This is not repudiation within the meaning of that word as used in the case on which the appellant relies, the Full Bench case of Dayamoyi v. Ananda Mohan Roy Chowdhury 27 Ind. Cas. 61 : 18 C.W.N. 971 : 20 C.L.J. 52 : 42 C. 172.

(3.) On these findings the appeal, in so far as the plaintiff prays for khas possession must fail, but he should be granted a declaration of his title in the superior interest to the extent of his share, namely, 7 annas 15 gandas 1 krant 61 1/4 dhul. With this modification this appeal is dismissed.