MAHOMED ALI HAIDAR KHAN Vs. UPENDRA NATH GHOSE

JUDGEMENT

(1.) A short statement of the facts which have given rise to this litigation will explain the points for determination involved in this appeal.

(2.) The case as stated in the plaint is that there was a permanently settled estate known as taluk Rai Gourhari Sing in the district of Sylhet, that a separate account was carved out of the same and was known as Kharija Hishya No. 113 and was possessed by the plaintiffs father Muhammad Ali Amzad Khan, that the residuary Mahal which was described as Mahal No. 47031-1, taluk Rai Gourhari Sing No. 1, was purchased at a sale for arrears of Government revenue on 8 January 1892 by one Kashi Nath Ghose, the father of defendants 1, 2 and 3, now dead; that the said Kashi Nath sold some lands in chaks and four annas share of the rest of the land of the said residuary mahal to one Nobo Kumar Das, defendant 4 in this suit ; that dispute arose between Kashi Nath and Ali Amzad Khan regarding the lands of the residuary mahal ; that the dispute was settled by a Nirupanpatra which was duly executed by the plaintiffs father and Kashi Nath Ghose and defendant 4 on 19 Bhadra 1302 corresponding to 4 September 1895 ; that the dispute was settled in this way, namely that 350 hals of land of Schedule 2 to the plaint out of the lands of Schedule 1 to the plaint which consists of 1350 hals would be confirmed as appertaining to the separate account No. 113 owned by the plaintiffs and besides this an eight annas share of the thousand hals of lands of Schedule 3 to the plaint which are included in the 1350 hals of Schedule 1 with the revenue of Rs. 15 would be owned and possessed in absolute right by the plaintiffs father with, his sons and grandsons in succession, with power to make all sorts of transfer by gift and sale, etc., and the other eight annas share would be owned and possessed in the same manner by Kashi Nath and defendant 4 as appertaining to their auction purchased Mahal.

(3.) It was further alleged in the plaint that the dispute having been settled between plaintiff's father and Kashi Nath and defendant 4 in accordance with the Nirupanpatra the plaintiff's father continued to possess the land in Schedule 2 and an eight annas share of the land in Schedule 3 while Kashi Nath and defendant 4 possessed the remaining eight annas share of Schedule 3; that while plaintiffs and Kashi Nath and defendant 4 were in such possession of Schedule 3 lands respectively, the Government offered obstruction to their possession in respect of Schedule 3 lands and Kashi Nath and defendant 4 brought a suit numbered 33 of 1904 in the Court of the Subordinate Judge of Sylhet against the Secretary of State for India claiming sixteen annas of the lands of Schedule 3 and impleaded Moulvi Amzad Khan, father of the plaintiffs, as a defendant in the suit; that the plaintiff's father in order to oppose the improper claim of the plaintiffs to eight annas share of Schedule 3 belonging to him took adjournment in the said suit for filing a proper defence, but before he could do so he was attacked with serious illness and after taking several adjournments for filing the written statement he died without being able to file any.