SARODA PROSUNNO PAL Vs. SHAM LAL PAL

JUDGEMENT

(1.) ON the 25th September 1822 a suit was brought in the Supreme Court at Calcutta on the Equity side by Issar Chunder Pal, one of the sons of Roghoo Nath Pal, deceased, and Khetter Chunder Pal, son and heir of Tarachand Pal, deceased, another son of Roghoo Nath, against the other members of their family, which was an undivided Hindu family, to have the will of Roghoo Nath established and the provisions thereof carried into effect, and to have a partition of the immoveable estate of Roghoo Nath, subject to the provisions of his will. On the 22nd April 1823, by an order of the Supreme Court, Commissioners were appointed to make the partition, with power to examine the parties and their witnesses on oath, and to compel the production of documents. On the 28th June 1825 the Commissioners made their report, and thereby certified that they had allotted to Khetter Chunder Pal, with other property, a portion of tenanted ground in Deehee Entally, called Sontose's garden containing by admeasurement about four bighas and thirteen cottahs, and included within the boundary line coloured green in the map of the garden annexed to the report. The map is in existence. There is no doubt that Khetter Chunder's allotment, as delineated on the map, does contain four bighas and thirteen cottahs. And there is no question as to the exact position and boundary line of that allotment.

(2.) KHETTER Chunder died intestate, and without issue, in 1837, leaving Piarimoni Dossee his sole widow and heiress. Piarimoni died in 1884, and thereupon Raichurn Pal became the heir of Khetter Chunder, and entitled to his estate. In August 1885, Raichurn Pal brought a suit in the High Court, in its ordinary original civil jurisdiction, against the respondents for possession of four bighas thirteen cottahs of Sontose's garden, as having been allotted to Khetter Chunder by the decree in the partition suit. The plaint alleged that, from the time of the decree down to the time of his death, Khetter Chunder was in possession of the piece of land so allotted to him, and that after his death Piarimoni had possession for many years, and that the defendants were then in possession. Besides relying on a Hindu widow's power of alienation in case of necessity, the written statement of Sham Lal, the real defendant, denied that Roghoo Nath died possessed of the four bighas thirteen cottahs, and alleged that within the land the subject-matter of the suit about one bigha of land, described inaccurately in the conveyance and in a subsequent pottah thereof as sixteen cotths, had been purchased by Piarimoni with her own moneys from one Sheik Budooroodin under a bill of sale dated the 25th December 1834, and never was part of the estate of Roghoo Nath. The main defence failed. But both Courts have dealt with the minor point suggested by Sham Lal. The learned Judges of the Court of Appeal, differing from the Judge of First Instance, have found or placed within Khetter Chunder's allotment Budooroodin's sixteen cottahs, now developed into one bigha four cottahs. In order to arrive at this result they assume a blunder on the part of the Partition Commissioners, and an adverse title to part of the allotment extinguished in 1834 by Piarimoni's purchase.

(3.) LOKENATH , suing on his mortgage, obtained a decree for sale in default of payment of the amount due. The land in mortgage was sold under the decree on the 19th February 1870. It was bought by one Modoosoodun Dutt. On the 1st December 1877 Modoosoodun Dutt became insolvent. His property was put up for sale in lots by the Official Assignee. At the auction the defendant Sham Lal in the name of his son, the co-defendant, bought Lot 2. Lot 2 was conveyed to him by deed dated the 4th August 1880. On examining this deed it seems clear that Lot 2 is the piece of land allotted to Khetter Chunder Pal on the partition, diminished slightly in extent by some encroachments which are noted by Mr. Cantwell, who surveyed the property on behalf of the plaintiff in 1888. Lot 2 is described as "containing by estimation four bighas and three chittacks, and 13 square feet, more or loss." The record is silent as to the other lots, among which Budooroodin's 16 cottahs if they exist might not improbably be found. But it would, in their Lordships' opinion, be an unprofitable task to enquire what has become of these 16 cottahs, and what is their precise situation. The plaintiff does not claim them. The defendant Sham Lal has not connected himself with them by any document of title or anything that can be described as evidence.