SHER ALI MRIDHA Vs. TORAP ALI

JUDGEMENT

(1.) This appeal is by the plaintiff and it arises out of a suit for recovery of possession on declaration of the plaintiff's title to the suit land. The land in suit appertains to a raiyati holding belonging to one Meru Shaikh. Meru Shaikh died leaving his widow Moyna alias Nowabjan and two sons Abdul Ali and Akub Ali. In 1916 the two sons of Meru Shaikh mortgaged their 14 annas share in the holding to one Benode Behari Shaha. In 1920, Akub Ali's son Turab Ali who is defendant 1 in the present suit, created a usufructuary mortgage in favour of the present plaintiff in respect of the land of this holding. In 1921, the widow of Meru Shaikh, Moyna alias Nowabjan, who is defendant 6 in the present suit sold her 2 annas share in the holding to Maniruddin and Kalimuddin who on their part sold this interest to the present plaintiff on 31 May 1923. In 1922, the mortgagee of the 14 annas interest instituted a suit for enforcement of the mortgage, obtained a decree in that suit and-in execution of that decree purchased the holding himself in 1923. The present plaintiff as a usufructuary mortgagee thereupon deposited the decretal amount and got the said sale set aside. Thereafter on 5 May 1925, the plaintiff instituted a suit for recovery of the money deposited by him in satisfaction of the mortgage dues and obtained a decree against the sons of Meru Shaikh and ultimately in execution of that decree put their 14 annas interest in the holding to sale and purchased the same himself on 14 June 1928. The plaintiff then took delivery of possession through Court of this 14 annas share on 20 December 1928.

(2.) Thereafter in 1930, the present plaintiff instituted a suit for recovery of possession of one kani of land of the holding basing his title on his purchase dated 31 May 1923 and auction purchase dated 14 June 1928, alleging that after thus acquiring title, he came in actual possession of the entire holding but was subsequently dispossessed from the one kani of land by the defendants on 20 March 1929. This was Suit No. 130 of 1930, of which the plaint is Ex. 2 (b) and the judgment is Ex. F in the present case. In this suit, it was found that the story of plaintiff's getting into actual possession of the land and of subsequent dispossession on 20 March 1929, was a myth. His claim however was decreed on 16 March 1931, on the strength of his title as aforesaid and he succeeded in obtaining possession of that one kani of land in execution of this decree on 13 April 1932. After this there appear to have been disputes between the present plaintiff and defendant 1 regarding the possession of the land of the holding and ultimately defendant 1 instituted a proceeding under Section 145, Criminal P.C., in July 1936 and this proceeding was decided in his favour on 6 November 1936.

(3.) The present suit was instituted by the plaintiff on 8 July 1937, on the strength of his title by amicable purchase of 1923 and auction purehase of 1928 and symbolic delivery of possession of 20 December 1928, again alleging that after the delivery of the symbolic possession he came in actual possession of the land of the holding, was dispossessed from only one kani of land of which the possession was recovered by him by his title suit No. 130 of 1930, thereafter continued in peaceful possession of the entire holding for some time after which disturbance was caused by the defendants and the order in the proceeding unifier Sec. 145, Criminal P.C., threw cloud on his title and compelled him to come to the civil Court. The lands of the previous suit are given in Schedule Kha of the present plaint and the remaining lands are given in Schedule Ka. Both the Courts have found title with the plaintiff and that question is not in dispute in the present appeal. The main question raised by the defendants in the case is that the present suit in respect of the lands given in Schedule Ka of the plaint is barred by the provisions of Order 2, Rule 2, Civil P.C., inasmuch as the plaintiff was out of possession of the entire holding before his suit of 1930 and the cause of action in respect of which the present suit has been instituted is the same as the one in respect of which the previous suit was instituted by him.