JOGESH CHANDRA MUKHERJEE Vs. RAI BEHARILAL MITRA BAHADUR

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of possessions of the lands specified in Schedule (gha) and for confirmation of possession of the lands of Schedule (ga) of the plaint, on declaration of his title to the same. The plaintiff's claim in suit was based upon the solenamas in terms of which a previous suit, No. 63 of 1913, was disposed of as between the plaintiff's father and the two sets of landlords, representing the entire interest in the lands in suit. The contesting defendants, defendants 1, 4 and 5 in the suit, resisted the claim of the plaintiff as made in the suit. Defendant 1 was the landlord, while defendants 2, 4 and 5 were persons claiming to be in possession of the lands in suit, holding the same under the landlords. The solenama on which the plaintiff's title was based, and under which the plaintiff claimed howla right in the lands in suit, were characterised by the defendants as documents fraudulently obtained by the plaintiff's father; they were not acted upon and given effect to; and they would not create any howla right in favour of the plaintiff's father. It was asserted that the lands were in the landlord's khas possession and from 1298 B. S. defendants 4 and 5 have been holding the same as tenants under the landlords. On the pleadings of the parties, various issues were raised for trial in the suit: and the most material of those issues for the purpose of this appeal are issues 9 and 6 raised in the case: Is the solenama alleged to have been entered into in T. S. No. 63 of 1918 of this Court, between the plaintiff's father and the zamindar defendants, legally admissible in evidence in this suit? Is it bona fide, valid or binding between the parties? Is the suit barred by the principle of res judicata?

(2.) The Court of first instance gave its decision in favour of the plaintiff. The plaintiff's howla right to the lands in suit was declared and the plaintiff was held entitled to get khas possession of schedule (gha) lands: and his possession in regard to (ga) schedule lands was confirmed. On appeal by the contesting defendants, the decision and decree passed by the trial Court in favour of the plaintiff were reversed. The plaintiff's suit was dismissed by the Court of appeal below. The plaintiff has appealed to this Court. In view of the nature of the controversy between the parties it is unnecessary at the outset to refer to the facts and circumstances relating to the solenamas filed in suit No. 63 of 1913, brought by the plaintiff's father against the landlords, the Chakrabarties, and against Hari Charan and Ledu, amongst others. The plaintiff's claim in that suit was based on esat howla and nim howla right and it was asserted that the entry in the Record-of-Rights showing that the lands were the maliks khas lands was incorrect. The Chakrabarti defendants in that suit alleged that the lands appertained to a different estate altogether, thus denying the title of the landlord defendants in the suit. Hari Charan and Ledu, defendants 4 and 5 in the present litigation were made defendants in the suit of 1913, as pro forma defendants on the allegation that they had manufactured a kabuliat from a co-sharer landlord. The suit was dismissed, so far as Hari Charan and Ledu were concerned, on the ground that the plaintiff in suit No. 63 of 1913 had no cause of action against them. The plaintiff's suit so far as it was directed against the Chakrabarti defendants was dismissed, and the dismissal of the suit against the Chakrabarties appears to have been finally upheld by this Court, on 4 February 19l9. As has been already indicated, the solenamas were filed in Court determining the rights of parties so far as the plaintiff landlord, defendants in suit No. 63 of 1913, were concerned. The howla right of the plaintiff in that suit was to be declared in the lands in suit. It was specifically stated in the solenamas that the lands shall continue to be in possession of the plaintiff in howla right under the zamindar defendant.

(3.) It was provided in the solenamas that if separate kabuliyats were not executed the petition of compromise "shall be operative against the plaintiff as a kabuliyat," The trial Court in its judgment, dated 10 September 1914, stated that the solenama will govern the plaintiff and defendants 1 to 3, representing the zamindary interests at the time. It was distinctly mentioned that as regards defendants 1 to 3 it is ordered that the compromise made be recorded and a decree bo drawn up in terms of the same, so far as they relate to the subject matter of this suit.