HAMED GAZI Vs. SADAT ALI SIKDAR

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs, and it arises out of a suit commenced by them to recover possession of the lands in suit on establishment of their title to the same. The material facts lie within a short compass and may be stated as follows : According to the plaintiffs the three plots which constitute the subject-matter of the suit, appertained to a raiyati holding which was held by one Prasanna. Prasanna died leaving behind him his widow Nabintara, who is defendant 3 in this case, and two sons, to wit Aswini and Bholanath. Both the sons died some time in the year 1905 and Nabintara, succeeded to the property as their mother. In 1908 Nabintara sold the holding to defendant 2 Raicharan by a kabala, and two years later she adopted Raicharan as her son, purporting to act under an authority given to her by her husband during his lifetime. Since then Raicharan possessed the lands, and it was he who paid rents to the landlords, though in the Dakhilas, the name of Prasanna was maintained and Raicharan was described as a "marfatdar." In 1931, the landlords instituted a rent suit in respect of the holding, making Nabintara a party defendant and having got a decree, put up the holding to sale in execution of the same, and it was purchased by the plaintiffs on 17th June 1933. It is alleged that Nabintara, Raicharan as well as defendant 1 who was a mortgagee from the latter resisted the plaintiffs, in their attempt to take possession of the property and this led to the institution of the present suit.

(2.) The suit was contested by all the three defendants, and the defence in substance was of a two-fold character. It was alleged in the first place, that defendant 3 having no interest in the holding after she adopted defendant 2 as her son, the sale in execution of the decree which was obtained against defendant 3 could not give the plaintiffs any right to the holding. The second ground taken was that the plaintiffs sale certificate itself would show that the disputed lands were not sold to and purchased by the plaintiffs. The trial Court gave effect to both these contentions and dismissed the plaintiffs suit. On appeal this decision was affirmed. It is against this decree that the present second appeal hag been preferred.

(3.) Two questions arise for determination in the present appeal : first, whether the plaintiffs acquired any title to the property in suit by virtue of their purchase at the sale in execution of the decree against Nabintara and secondly, whether the description in the sale certificate is sufficient to establish the identity of the property sold with that to which the present suit relates. As regards the first point, it is not disputed that the holding was a non-transferable one and consequently the landlords were not bound to recognize defendant 2 as transferee of the same. It is contended by Dr. Paul who appears for the respondent that as defendant 2 was possessing the lands all along and the landlord was receiving rents from him, he could be deemed to have acquired the interest of a tenant by recognition or at any rate by adverse possession. It is true that the word "marfatdar" is not conclusive, and the Court could on a consideration of the entire evidence come to conclusion that there was recognition establishing a relationship of landlord and tenant between the parties, vide Prabhabati V/s. Taibatannessa (1913) 17 C.W.N. 1088; but the matter has not been investigated from that standpoint, by either of the Courts below and there is no finding on this point recorded by either of them. We might assume therefore that the landlord did not recognize the transfer, and Nabintara continued to be the recorded tenant even after she sold the holding to Raicharan. The question now is, what would be the effect of Nabintara's adopting Rai Charan, as a son to her husband in 1910. It has been found by both the Courts below that Nabintara had the requisite authority from her husband, and that the adoption was a valid adoption in law. Dr. Sen Gupta who appears for the appellants argues that the property was inherited by Nabintara, as heir to her sons, and not to her husband, and consequently the adopted son, coming as a brother to the last male owners, could not divest the mother, who was a preferential heir according to Hindu law. The contention at first sight seems to be of some weight but almost all the reported authorities are against this view.