HEMANTA KUMARI DEBI Vs. SEFATULLA BISWAS

JUDGEMENT

(1.) The plaintiff's case shortly put was as follows: By a lease dated 4 Agrahaon 1320 (20th November 1913) the plaintiff settled a chur named Chur Udaipur, consisting of about 392 bighas of land, for a period of ten years with one Asiruddi Hazi and one Kazem Munshi, for purposes of cultivation. The jote was sold in execution of a decree for arrears of rent for the period 1324 to 1327 B.S., and purchased by one Syeduddin, son of Asiruddi Hazi on 24th October 1922. Syeduddin thus came into possession and continued to be so for the unexpired portion of the lease. The term of the lease expired in Kartic 1330, when Asiruddi gave up possession, so that the chur reverted to the khas possession of the plaintiff. The plaintiff then caused proclamation for settlement of the chur to be made by beat of drum and by affixing notices at various places, got the chur surveyed and chittas and khatians prepared and then settled it with the pro forma defendants, such settlements being made during the period Falgoon 1330 to Baisakh 1331. Defendant 1 Sefatulla Biswas (who had taken a lease of a half of the chur, i.e., of 196 bighas, from Asiruddi) at first tried to obtain a settlement, but having failed therein, created various disturbances and eventually dispossessed the proforma defendants. The plaintiff therefore instituted this suit on 9 March 1927 for recovery of khas possession or if it be found that the pro forma defendants had raiyati rights then for recovery of joint possession with them, and also for mesne profits.

(2.) Defendant 1 in the suit was the said Sefatulla Biswas as already stated. Defendants 2 to 37 are sub-lessees and other persons whom defendant 1 set up and who are alleged to have been acting in concert with him in the matter of the dispossession. Defendants 38 to 76 are the proforma defendants. The written statement of defendant 1, under whom the contesting defendants, namely, defendants 2 to 37 claim, is important. He pleaded that the suit could not proceed as the jotedars Asiruddi Hazi and the heirs of Kazem Munshi were not parties to it; and without determining whether they had given up the lands. He denied that Asiruddi or Kazem or the heirs of the latter or Syeduddin ever abandoned the holding, and asserted that consequently the plaintiff had no right to make a fresh settlement of the lands. He also denied the allegations as to the issue or service of the proclamations for settlement. A written statement was originally filed on behalf of defendants 2 to 37 in which only a barga right and no permanent right was set up. The suit proceeded and eventually there was a decree on a compromise as amongst the plaintiff, defendant 1 and some of the pro forma defendants, defendant 1 getting a quantity of land for himself, and ex parte against defendants 2 to 37. Subsequently the ex parte decree was set aside, and defendants 2 to 37 were allowed to file a fresh written statement, it being held that the first written statement filed on their behalf was not really theirs but was the handiwork of defendant 1 who had practised a fraud on them. They filed a fresh written statement pleading that the tenancy of Asiruddi and Kazem had not been determined, that they themselves had taken settlements from defendant l whose tenancy was subsisting and that, in any ease, they were tenants bona fide holding under the latter and so not liable to eviction. The Subordinate Judge has dismissed the suit. Hence this appeal by the plaintiff.

(3.) The main question, which the Subordinate Judge treated as a preliminary question in the case and on the decision of which he has dismissed the suit, is, as he put it in his judgment, a question as to non-joinder, namely, non-joinder of Asiruddi, of the heirs of Kazem and also of Syeduddin. In reality however it is not a mere question of non-joinder but a question of substance as well. He held that the plaintiff had failed to prove that these persons had no subsisting rights, that the question as to whether the lease in favour of Asiruddi and Kazem had determined or not or whether Syeduddin had a subsisting tenancy or not could not be decided in the absence of those persons, and he observed: If they were made parties, they would be able to produce evidence, which the contesting defendants are not in a position to produce, that their lease had not been legally determined; so in their absence the plaintiff's right to settle lands to the pro forma defendants cannot be established. This non-joinder of necessary parties is fatal to the plaintiff's case. The plaintiff has not impleaded the parties whose right to remain in possession cannot be ignored,