BINDUBASHINEE DEBI Vs. KASHINATH BHATTACHARYA

JUDGEMENT

(1.) The lands in dispute in the suit in which the appeal arises are situate within a sadar mirash ijara which belonged to defendants 6 to 18 and one Baikunthanath Chakrabarti in the shares of 11 annas and 5 annas, respectively. The 5 annas share of Chakrabarti was sold at an execution sale and was purchased by Amulya in the benami of Jogesh Chakladar. Plaintiffs (now appellants) rest their title to the 5 annas share of the lands described in the plaint on the basis of (1) their purchase of 3 annas from Jogesh and Amulya, and (2) on the basis of a lease for ten years regarding the other 2 annas from the same persons. Under the mirash ijara there was karsha tenant, Bhanga Baidya, who abandoned the holding. When the plaintiffs went to take possession they were resisted by defendants 1 to 5. Hence the present suit for declaration of plaintiffs title to the 5 annas share of the lands mentioned in the plaint and for recovery of joint possession to the extent of that share with the defendants.

(2.) The defences of defendant 1, which it is necessary to notice, are (1) that they have a settlement from defendants 6 to 18 in respect of their 11 annas share and also to a settlement from Jogesh Chakladar and Baikuntha Mukherji, whom the former stated to be the beneficial owner, and this settlement is binding on the plaintiffs and their vendor and that plaintiffs were not entitled to khas possession; (2) that the suit is barred by Section 66, Civil P.C.

(3.) The Munsif negatived the defence based on Section 66 and, accepting the other defence, dismissed plaintiff's prayer for joint possession after declaring plaintiff's title to the disputed 5 annas share of the plaint lands.