CHENGTU SARKAR Vs. JAHERUDDIN MONDAL

JUDGEMENT

(1.) These are two appeals by the plaintiff who brought two suits for rent for two holdings against different defendants. Both the suits were, by consent of parties, tried together by the Court below and governed by one and the same judgment. The facts shortly stated are these. The plaintiff alleged that one Jadav granted adarputni of 4 annas share in the year 1315. On the death of Jadav, his son granted to the plaintiff a darputni of the remaining 12 annas by a potta dated the 24 Falgoon 1321. It is further alleged that the defendant Jaharuddin Mondal and another defendants in one of the suits executed a kabutiyat in favour of the plaintiff acknowledging the plaintiff to he the landlord of the 16 annas. The defendants in both the suits have, since the plaintiff became the owner of the 16 annas of the property, paid him rent. It appears that one Ananda Ohaki brought a 4-annas share of the putni to sale as having belonged to one Mohi Pal and that the plaintiff in order to safeguard his interest took a conveyance of that 4 annas share from the son of Ananda Chaki. The defendants so far as Suit No. 97 is concerned pleaded that the plaintiff had not 16 annas of the putni and that the kabuliyat executed by them was taken by fraud and that it was executed in ignorance of the true facts stated as to the putni. Then in the other suit the defendants pleaded non-liability to the plaintiff.

(2.) Both the Courts below have given a decree to the plaintiff for 8-annas share of rent, but dismissed the suit with reference to the other 8-annas share. It was argued in second appeal by the plaintiff that some of the defendants having executed a kabuliyat in favour of the plaintiff for the 16 annas share and having paid him rent after the execution of the kabuliyat and that the, defendants in the other suit having also attorned to the plaintiff, and haying admitted title to the 16-annas of the property, they were estopped from questioning the title of the plaintiff.

(3.) If was also argued on behalf, of the plaintiff-appellant that assuming that, the defendants were entitled to raise the question as to the plaintiff's title; the onus was upon them to show that the plaintiff had not the 16-annas of the title in himself. It appears that both the Courts below took the view that the onus was upon the defendants to show that the plaintiff had not the 16 annas of the title. The, lower Appellate Court after finding that Jadav had 8-annas share took up the question as to the plaintiff's title to the other 8 annas share.