MANINDRA NATH KOLEY Vs. SAHADEB KOLEY

JUDGEMENT

(1.) The plaintiffs-respondents in this appeal brought the suit out of which the appeal has arisen, for declaration of their title to a two-third share of the property described in Sch. Kha of the plaint (that is the only item of property in dispute in this appeal), and for ejectment of the defendants. There was in the alternative a claim for declaration of right to receive rent, on the footing that the defendants were, by virtue of an arrangement between cosharers, the plaintiffs and the defendants, under-raiyats in respect of the property in suit. So far as the under-raiyati interest alleged to have brought into existence by virtue of an arrangement was concerned, there was a suit for contribution, suit No. 457 of 1925, brought by the plaintiffs, against the defendants, directly putting the matter in issue. The defendants denied in that suit the existence of the under-raiyati, by virtue of any arrangement between cosharers as alleged by the plaintiffs. It was decided in that suit that the story of arrangement set up by the plaintiffs had not been established. As indicated above the defendants denied the existence of the arrangement and the existence of any under-raiyati interest, and that denial was allowed to prevail. The plaintiffs asserted in the present suit that the denial in the previous suit of the existence of the under-raiyati, entitled them to get khas possession of the lands in suit, in regard to which there was an under-raiyati held by the defendants, by virtue of an arrangement. The contesting defendants denied the story of under-raiyati, as they did in the suit of 1925. They asserted that they held the lands in question in equal shares with the plaintiffs, and denied the story of arrangement between them and the plaintiffs then cosharers, of any arrangement as set up in the plaint.

(2.) The trial Court gave its decision in favour of the plaintiffs on the footing that the defendants had taken settlement of Sch. kha lands under the plaintiffs, and that they (the defendants) were under-raiyats, who had acquired rights of occupancy and were protected from eviction. The defendants were held liable by the trial Court, to pay rent to the plaintiffs in regard to Sch. kha lands or pay the same to the superior landlords, in the manner mentioned in the order portion of the judgment of the Munsif. On appeal by the plaintiffs and on cross- objection preferred by the defendants, the Court of appeal below, held that the plaintiffs were entitled to possession of their two-third share, and at the instance of the plaintiffs, passed a decree for joint possession to the extent of the plaintiffs two-third share in respect of Sch. kha lands, the plaintiffs having represented to the Court they would be satisfied with a decree for joint possession.

(3.) In my judgment, both the Courts below proceeded on an erroneous basis, and their decision cannot be supported. The error on the part of the Courts below is due to the fact that they altogether failed to appreciate and give effect to the decision of the previous suit of 1925. There is no question that the plaintiffs asserted in the present suit that the denial of the under-raiyati by the defendants amounted to forfeiture of the tenancy held by them, and they were therefore entitled to get possession of the lands in respect of which there was an under- raiyati interest. It would appear however from the judgment in the previous suit of 1925, that the under-raiyati interest was held to be non-existent, for the reason that the story of an arrangement between the cosharers, the plaintiffs, and the defendants, set up by the plaintiffs had not been established. In that view of the case, the position is this: The plaintiffs are cosharers of the defendants in regard to Sch. kha lands, and there was no under-raiyati in respect of the two-third share owned by the plaintiffs. The Courts below failed to take into consideration, the questions that had to be decided, and were in point of fact decided in suit No. 457 of 1925, and by virtue of which decision, the plaintiffs could not be allowed to reagitate the question of an arrangement between themselves and the defendants by which an under-raiyati in respect of Sch. kha lands was brought into existence.