RAJANI KANTA GHOSE Vs. NAGENDRA NARAIN ROY

JUDGEMENT

(1.) This is an appeal by the Defendant No. 1 against a decision of the District Judge of Murshidabad confirming a decision of the Second Court at Jungipur. The only question that arises in the appeal is whether there has been a complete abandonment by the tenants of the holding so as to entitle the plaintiffs to the relief which they seek in the suit, namely, recovery of possession. On the 8 of May 1910, the tenants executed in favour of the appellant a usufructuary mortgage. The area stated in the mortgage is 26 bighas 7 kotahs of land "as per boundaries given below." The boundaries and the plots comprised in the mortgage are set out in detail in the schedule to the deed. On the 20 of May 1911, the tenant sold 16 bighas 12 kotahs of the land to the appellant by a kobala of the date which I have mentioned. The area is stated in the document as 16 bigbas 12 kotahs land out of the 26 bigbas 7 kotahs mortgaged to the appellant. Subsequently, on the 31 of May 1918, the tenants sold to Defendants Nos. 2 and 3, 10 bighas 8 kotahs of land by a kobala of the date. This document describes the land sold as being the land that remained after various calculations had been made. I find this statement: There remains 10 bighas 8 kotahs. All the lands mentioned in the kobala executed by me Loharam Mandal and in the kobala executed by the mother and guardian of the minor and in this kobala have been sold.

(2.) This document refers to what are described as various inaccuracies of measurement appearing in the mortgage and in the kobala of the 20 of May 1911.

(3.) It appears that the total area of the holding in dispute is 27 bighas 5 kotahs and the appellant contends that there has been no abandonment as there are still 5 kotahs remaining undisposed of. Subsequently a baina patra was entered into for sale to the appellant of 8 bighas 15 kotahs land and another suit was instituted to enforce specific performance of this contract as the purchaser failed to get possession of the land.