ABDUL KHALEQUE Vs. SUSIL CHANDRA CHAUDHURY

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the learned Additional Subordinate of Sylhet affirming the decree for possession passed by the learned Munsif, Second Court, Sylhet, in favour of the plaintiffs-respondents. The plaintiffs fall into 3 groups, the second and third groups claiming as tenants and sub-tenants, respectively of the plaintiffs of the first group.

(2.) The root of the title of the plaintiffs of the first group, according to them, is a purchase by their predecessors from one Rajani Kanta of the lands in suit which they say are specific lands of taluq Ram bullav Nij Hissya. They also claim title by adverse possession. The learned Additional Subordinate Judge has held that the plaintiffs have failed to prove the title set up by them, but they have acquired title by adverse possession.

(3.) It appears from the record that the defendants instituted a suit in the year 1927 against the plaintiffs for possession under Section 9 of the Specific Relief Act and succeeded therein. The plaintiffs thereupon instituted a suit being No. 1467 of 1928 asking for the same reliefs as in this suit, based on the same cause of action. That suit was not proceeded with but was permitted to be withdrawn. The order for withdrawal dated November 14, 1929, is Ex. H. It is in these terms. The plaintiff be permitted to withdraw the suit with liberty to bring a fresh one unless barred as prayed for. Defendant will get costs which must be paid within one month as a condition precedent to the fresh suit. This order is quoted at p. 12 of the paper book but there is a slight mistake as to punctuation. These costs were not paid before the institution of the suit out of which the appeal arises nor within one month of the date of Ex. H. The present suit was instituted on January 23, 1930, and in the written statement which was filed shortly after an objection was taken as to its maintainability on the ground that the costs had not been paid in terms of Ex. H. An issue was framed on the said objection, but both the lower Courts have decided that issue in favour of the plaintiffs but on different grounds. It is only at the time of the hearing before the Munsif, about a year after the institution of the suit, that the plaintiff paid in Court the costs of the suit of 1928. The date of payment into Court is January 5, 1931. The Munsif pronounced his judgment eight days later. On March 10, 1931, a payment order was passed in favour of the defendants and I take it that the defendants received the amount thereafter. They filed the appeal to the learned District Judge on March 11, 1931.