JOGESH CHANDRA ROY Vs. EMDAD MEAH

JUDGEMENT

(1.) These are two consolidated appeals from two decrees of the High Court of Judicature at Fort William in Bengal, dated 12 June 1928, which reversed a decree of the District Judge of Chittagong, dated 27 June 1925, modifying a decree of the Subordinate Judge of Chittagong, dated 14 June 1924, and dismissed the suit, in which the appellant was plaintiff, with costs. The appellant is the owner of a Noabad taluk in the District of Chittagong. At the time of the cadastral survey operations of 1895 Homar Ali, the father of the respondent, was recorded as holding the tenancy of two jotes, Nos. 83 and 98, in the survey records. Homar Ali died in 1902, leaving a widow, a son (the respondent) and four daughters.

(2.) In the present suit, which was instituted on 15 April 1920, the appellant seeks to recover from the respondent rent for the year 1326 B. S. (1919-20) under a kabuliyat dated 11 October 1917, which related to part of Jote No. 83, but it will be necessary to relate the events which led up to the execution of the kabuliyat by the respondent. In 1910 the appellant instituted a suit for possession of Jote No. 83 against Homar Ali's widow and the respondent and obtained a decree in his favour in 1912. He executed this decree in 1913. In 1916 he brought a similar suit for possession of Jote No. 98 against not only the widow and the present respondent, but also against Homar Ali's four daughters as well. In October 1917, this suit was compromised as between the appellant and Homar Ali's widow and the respondent, the daughters being first excluded from the category of defendants on the petition of the appellant ; a solenama was then executed by the appellant, the widow and the respondent, under which, out of the 20 drones odd of which the holding consisted, the widow and the respondent were to hold 11 drones odd under the appellant at a rent thereby fixed and the appellant was to get khas possession of the balance of 8 drones odd. The respondent further agreed to pay a sum of Rs. 1,400 in respect of the appellant's costs and mesne profits by instalments and executed a mortgage therefor. In conformity with the compromise the appellant obtained a decree dated 5th December 1917. It was part of the settlement of that suit, which related to Jote No. 98, that the respondent should execute the kabuliyat relative to Jote No. 83, dated 11 October 1917, already referred to, which forms the basis of the present suit.

(3.) By this kabuliyat the respondent took a be-kaemi (non-permanent) settlement as a yearly tenant of 10 drones odd out of the 14 drones 5 kanis odd, which made up Jote No. 83 and which were stated to be in the khas possession of the appellant, and agreed to pay an annual rent of Rs. 50 and 1,858 arhis 9? seers of paddy or Rs. 1,239-1-0, the price thereof. In January 1920, the respondent's sisters brought a suit against the present appellant and respondent for a declaration of their right and confirmation of their possession, to the extent of their share as co-heirs of Homar Ali in Jote No. 83.