ANU BISWAS Vs. GOPAL SHEIKH

JUDGEMENT

(1.) This is an appeal by the plaintiffs against a judgment and decree of the Officiating Subordinate Judge of Faridpur dismissing the plaintiffs suit. The plaintiff's allegations upon which they claimed are shortly these: that one Idu was the original owner of the property in suit. That on Idu's death the property devolved upon the Plaintiff's Nos. 2, 3 and Defendant No. 2 and that Defendant No. 2 sold his interest in the property to the Plaintiff No. 1 by a conveyance executed on 21 December 1917. That the plaintiffs were in possession of the property, but they were dispossessed by the Defendant No. 1 in execution of a decree which that defendant obtained against them in a case under Section 9 of the Specific Relief Act. On these grounds, the plaintiffs prayed for declaration of their title as alleged and also for possession from Defendant No. 1 The defence of Defendant No. 1. was that, as a matter of fact, there was a partition between the heirs of Idu and that Defendant No. 2 let out the lands in suit which fell exclusively to his share on partition to the Defendant No. 1 in November 1917. Therefore, the defendant contended that he was rightfully in possession as a lessee under Defendant No. 2 and was, therefore, not liable to be ejected.

(2.) The learned Munsif found that the title alleged by the plaintiffs was established. The learned Munsif further came to the conclusion that the partition set up by the Defendant No. 1 was not proved. The lower Court further found that the tenancy set up by the defendant was not also established. On these findings the learned Munsif gave a decree to the plaintiffs. Then there was an appeal by the Defendant No. 1 before the learned Subordinate Judge who, as I have already stated, set aside the decree of the learned Munsif and dismissed the plaintiff's suit. It appears to me that the learned Subordinate Judge has entirely misapprehended the scope and the nature of the suit. The learned Subordinate Judge has started with the finding which is in affirmance with the finding of the first Court that the plaintiffs had made out their title to the land as it was recorded in the Record of Bights, i.e., the title as alleged in the plaint. Having found that, the learned Subordinate Judge says that the defendant being in possession under the decree under Section 9 of the Specific Relief Act, the onus is upon the plaintiffs to show that he had no tenancy right on the land. Then the learned Subordinate Judge says that it is not necessary to find whether there was an actual partition as alleged by the defendant. Then the learned Subordinate Judge concludes his judgment in these words: "The incident of the tenancy and the nature of it are not clear from the evidence before me, and however flimsy that tenancy might be the plaintiffs cannot ask ejectment unless that tenancy has been lawfully determined."

(3.) In my opinion these findings of the learned Subordinate Judge are insufficient for the disposal of the case; much less are they sufficient for the reversal of the decree made by the First Court. The plaintiffs having established their title to the land it was the duty of the defendant who sets up the tenancy from one of the cosharers to establish such a tenancy and to show that the nature of the tenancy was such that it was binding upon the purchaser as the Plaintiff No. 1 in this suit was. Then again, in order to make that lease binding against all the cosharers, it was the duty of the defendant to establish satisfactorily that there was a partition between the cosharers, before the alleged lease to the defendant No. 1, under which his lessor obtained a complete title to deal with the land by way of a lease in favour of Defendant No. 1. Until the partition is established and until the Defendant No. 1 shows the nature of the tenancy which he had obtained from Defendant No. 2, he cannot successfully resist the claim of the plaintiffs. We think, therefore, that the judgment of the learned Subordinate Judge should be set aside, and the case sent back to him so that the appeal may be re-heard in the light of the observations which we have made in this judgment. I may, however, point out that although the learned Subordinate Judge agreed with the Munsif that the plaintiffs had made out their title, he dismissed the suit altogether. He was clearly wrong there. If the Defendant No. 1 establishes a tenancy which would be binding against the Plaintiff No. 1 subject to the rights of the Defendant No. 1, there should be a decree declaring the title of the Plaintiff No. 1 and the Defendant No. 1 should be declared liable to pay rent to the Plaintiff No. 1; but if the defendant fails to prove the partition and the tenancy, as I have already indicated, the judgment of the learned Munsif will stand.