MD SERAJUL HAQUE Vs. DWIJENDRA MOHAN SEN GUPTA

JUDGEMENT

(1.) This is an appeal on behalf of some of the defendants in an action of ejectment on declaration of the plaintiffs title. The learned Munsif who tried the suit declared the plaintiffs title as landlords, but dismissed the claim for ejectment on the ground that the suit had not been properly constituted. On appeal, the learned Subordinate Judge reversed the decision, and decreed the suit in full. The defendants were directed to remove the huts and structures from the lands within three months, failing which the plaintiffs were given liberty to take khas possession on removal of the same at the cost of the defendants. Hence the present appeal by four of defendants, 1 to 4, the other contesting defendant 5 and pro forma defendant 6 being joined as respondents. The defence to the suit was mainly two-fold : first that the suit was defective for want of parties in so far as the entire body of cosharer landlords had not been represented, and secondly that the tenancy was a kayemi or permanent one, and that the defendants were not therefore liable to ejectment. As regards the nature of the tenancy, both the Courts below held against the defendants, but on the first point, as already stated, the learned Munsif gave effect to their contention, and dismissed the suit in consequence, while the lower appellate Court took a different view. Both the grounds of attack have been renewed in the present appeal. The lands in dispute are two plots, dags 693 and 694 of the last revisional settlement of Chitta-gong, and are admittedly situated in two mahals described as lakheraj behali jimbas, No. 14573 jimba Jona Feringee and No. 14325 jimba Jornada Baru. They are recorded in the settlement proceedings in tenants khatians Nos. 163 and 167, respectively.

(2.) It may be taken as an accepted fact that the proprietary or landlord's interest in these mahals was vested at one time in one Kailash Chandra Dutt, and that it then passed to Jatra Mohan Sen Gupta by different conveyances executed in his favour by the sons of Kailash. It appears that Kailash also held some raiyati holdings in these mahals in the name of one Krishna Chandra Datt, father of pro forma defendant 6, and these too were conveyed to Jatra Mohan Sen Gupta. Jatra Mohan thus acquired not only the superior right in the two mahals, but also a raiyati interest in a number of holdings within the same. He afterwards sold one- fourth of his interest, both maliki and raiyati, to one Hara Kinkar, and this was subsequently purchased by one Sarada Kripa Lala in execution of a money decree against Hara Kinkar. Sarda Kripa Lala in his turn transferred his interest to one Jatindra Lal Sen, plaintiff 7, in the present suit, by kobala, Ex. 7.

(3.) The remaining three-fourths interest which Jatra Mohan retained devolved on his death on his five sons whom he left surviving, the eldest being Jatindra, and the other four being Fanindra and plaintiffs 2 to 4. Jatindra has since died, and his one-fifth share is now held by his two sons, plaintiff's 5 and 6. He left a widow, Mrs. Nellie Sen Gupta, who is plaintiff 1, in the suit, and it is said that though she did not inherit anything from her husband, she acquired the interest of Fanindra at a court sale in execution of a money decree against the latter. The sale certificate is Ex. 9A, the date of the sale being the 10 February 1937. According to the plaintiffs case, therefore, at the date of the suit the landlords interest was fully represented by them, to the extent of three-fourths by the surviving sons and grandsons of Jatra Mohan Sen Gupta, plaintiffs 2 to 6, along with Mrs. Nellie Sen Gupta, plaintiff .1, in the right of Fanindra, and as regards the remaining one-fourth by plaintiff 7, Jatindra Lal Sen, as transferee from Jatra Mohan. This was contested by the defendants who alleged that neither plaintiff 1, nor plaintiff 7, acquired any interest in the disputed lands by her or his purchase, and they contended accordingly that as neither Penindra nor the vendor of Jatindra Lal Sen had been made parties to the suit, the claim to ejectment was not maintainable. Taking first the objection raised regarding Mrs. Nellie Sen Gupta's purchase, it is obvious that the question must depend on a construction of the sale certificate, Ex. 9A, which is the foundation of her title : it has to be seen whether or not it includes the superior interest in the two mahals in which the lands in dispute are admittedly situated. The sale certificate comprises quite a number of items which are set out in the schedule under different lots, but it is common case that these lands, if they are covered by the document at all, are to be found in lot 2. It is also agreed that whatever right, title and interest the judgment-debtor had in the properties conveyed passed by the sale.