RAJ KUMAR ROY CHOWDHURY Vs. ALIMADDI

JUDGEMENT

(1.) The plaintiff, having purchased the lands in suit at a sale held in execution of decree for arrears of rent against one Iswar Saha, brought this suit for recovery of rent against the defendants on the basis of a kabuliyat, dated the 2nd Assin 1289 B.S., executed by Ali Mohamed, the father of the defendant No. 1, and two other persons in favour of the said Iswar.

(2.) The defendants denied the relation of landlord and tenant between them and Iswar.

(3.) The Court of first instance, referring to certain circumstances stated in its judgment, was of opinion that the kabuliyat might be suspected collusive, but as that was not the defendants case who denied that Ali Mohamed executed the kabuliyat at all, and finding that the defendants possessed the land on the strength of the kabuliyat and a decree for rent had been obtained by Iswar on the kabuliyat against the defendants, which, although in its opinion did not operate as res judicata, raised some presumption in favour of the plaintiff, came to the conclusion that there was relationship of landlord and tenant between Iswar and the defendants and accordingly gave a decree for rent to the plaintiff against the defendants at the rate stipulated in the kabuliyat. On appeal by the defendants, the lower Appellate Court was of opinion that no rent had been paid under the kabuliyat, dated the 2nd Assin 1289, that the kabuliyat had not been executed and that the defendants had executed a kabuliyat in 1296 B.S. in favour of a rival zemindar and that under these circumstances, it could not agree with the findings of the Munsif and accordingly dismissed the suit.