NABA KISHORE TILAKDAS Vs. PARO BEWA

JUDGEMENT

(1.) The disputed land originally formed part of the occupancy holding of Fatiram Tilakdas. After his death his widow, pratima, mortgaged the holding to the plaintiff. Under the terms of the mortgage instrument the plaintiff was to have possession as usufructuary mortgagee, or ijaradar for a period of nine years ending with Baisakh 1319 B.S. Tilakdas left four daughters, but it appears that since the death of his widow, two of the daughters paro and, Bhuban have been treated as his heirs and the case has been argued before us on both sides on the assumption that they were his sole heirs.

(2.) On the expiry of the term of his mortgage the plaintiff did not surrender possession of the holding or the agricultural land therein comprised. In 1912, therefore, Paro and Bhuban sued him in ejectment claiming title as their father's heirs. In that suit Paro succeeded in appeal to the extent of a moiety of the holding while Bhuban's claim to the other moiety was dismissed. It is not very easy to follow the reasoning of the Appellate Court. The plaintiff's case (he was then defendant) was that on the death of Pratima, the landlord took khas possession of the holding and settled it with him with the knowledge and consent of the two ladies. The Trial Court had accepted that plea and had dismissed the suit in its entirety. In the appeal the learned Subordinate Judge found in his own words that "the evidence is not satisfactory to show that the malik dispossessed the plaintiffs (i.e., the two ladies) and took the lands into his khas possession." Nevertheless, he seems to have dismissed Bhuban's claim on the ground that she and the plaintiff (then defendant) had come to some am cable settlement with the landlord which did not bind Paro. It is not easy to conceive of an amicable arrangement between the plaintiff and Bhuban which would deprive the latter of the whole of her share. Moreover, the claim of a person who has obtained possession of land as mortgagee to retair possession after the termination of the mortgage should always be jealously scrutinized. Nevertheless, it must be accepted that the previous suit makes the quest on of the title to Bhuban's origin, al moety res judicata in the plaintiff's favour as between him and Bhuban.

(3.) In the present suit, the plaintiff seeks to recover possession of that moiety. The defendants are No. 1 Paro, No. 2 Paro's son, No. 3 Bhuban's husband and No. 4 Bhuban's son-in-law. Dc fend ant No. 4 is a mortgagee from Pare of her moiety and apparently he makes no claim to the disputed moiety. Defendants Nos. 1, 2 and 3 have no title of then own to the latter and must be treated in respect thereof as mere trespassers.