DIGENDRA KUMAR ROY CHOUDHURY Vs. KUTI MIAN

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiffs in a suit for recovery of possession on the disputed lands on evicting the defendants there from. The suit was decreed by the Munsif of Barisal, but dismissed on appeal by the learned District Judge. Hence the present appeal to this Court. The plaintiffs claim to be 16 annas landlords and their case briefly is that they had let certain lands to one Abdul Aziz Munshi and that the latter in his turn sub-let a portion to the defendants. In 1937, the plaintiffs evicted their lessee, the said Abdul Aziz Munshi, from the holding, but the defendants refused to vacate the portion of which they were in occupation. The plaintiffs served on them a notice to quit on 5 May 1938, but without any result, and then commenced the present action on 22nd September, following.

(2.) The defence in substance is a denial of the plaintiffs title to the full 16 annas of the landlords interest. It is admitted that plaintiff 1 holds 12 annas 6 pies share. But the dispute is as regards the remaining 3 annas 6 pies. Plaintiff 2 claims to represent this interest as trustee to the estate of three brothers, called the D Silvas, who between themselves are said to own it. But the defendants maintain that this leaves out of account the interest of another brother, E. C. N. D Silva, who was admittedly one of the original co-owners of this share. This D Silva was alive when Abdul Aziz Munshi was inducted into the land, but had died at the time of his eviction. He met with an accidental death in a boat disaster on 2l March, 1935. According to the "plaintiffs his interest passed, upon his death, to his three surviving brothers as his next of kin, in which case there can be no question that plaintiff 2, as trustee to their estate, would fully represent the said three annas six pies share. The defence case, however, is that the deceased was survived by his widow, who accordingly would and did take a share, and the widow's interest passed from her to her mother one Mrs. Wilcox, as her only heir under the law. Admittedly plaintiff 2 did not represent Mrs. Wilcox's interest; nor she was a party to the present suit; neither, it may be added, had she been a party to the eviction of Abdul Aziz Munshi. On these facts, the defendants seek to resist the plaintiffs claim to keas possession on the following grounds: (i) that all the landlords not having joined in evicting Abdul Aziz Munshi, his tenancy could not be lawfully determined and the plaintiffs were accordingly not entitled to re-enter; (ii) that this being an action in ejectment, as all the landlords were not parties to it, the suit was bound to fail.

(3.) It will thus be seen that the main question on which the case turns is whether or not his widow survived Mr. E. C. N. D Silva. This is a question of fact, but its determination is rendered difficult by the circumstance that both husband and wife are said to have perished in the same boat disaster, and there is no direct evidence on either side as to the precise sequence in which the deaths took place. There is some evidence on behalf of the plaintiffs regarding the circumstances in which the accident took place, but for the rest, the evidence of both parties is confined to the question of the comparative age and state of health of the couple. There is also evidence given by the plaintiffs to show that though after the death of the unfortunate pair, Mrs. Wilcox filed an application of Letters of Administration to the estate of her daughter, she limited her claim only to the ornaments and personal effects of the deceased and laid no claim to any immovable property.