UMASASI DEBI Vs. AKRUR CHANDRA MAZUMDAR

JUDGEMENT

(1.) In the suit out of which this, appeal has arisen the plaintiff who is the appellant before this Court sued for a declaration that she had lakheraj and jamai right purchased at auction sale in respect of some 3-annas odd share left by her husband and that she was entitled to the 16- annas rent of the land in question and the defendant had no right in respect of the land.; She also asked for a perpetual injunction to restrain the defendant from obstructing her in the realisation of the rents of this land. If it should be found that the plaintiff was not in possession of the land then she sued to recover possession. Her case, as a perusal of the plaint will make quite clear, is that her husband bought the lakheraj right in the land in his own name and with his own money. Subsequent to this he purchased the tenants right in the land on the 24 of February at a sale in execution of a decree in the name of the defendant No. 1, obtained a certificate of sale and in virtue of this sale certificate obtained possession of the property. Some of the land he kept in his own possession and the rest was let out to tenants. The kabuliyats were in the name of the defendant No. 1 because the sale certificate stood in his name. Umesh Chandra Mukerji the husband of the present plaintiff died leaving no son and the defendant No. 1 taking advantage of this circumstance has persuaded the tenants not to pay rent to the plaintiff. From this the plaintiff realises that the defendant intends to take possession of the property left by her husband and hence she has brought this suit asking that the Court will declare that she has lakheraj and jamai title purchased at auction sale of the 3-annas odd share left by her husband and also a declaration that she is entitled to the 16-annas share of the rent, that the defendant has no title to the property and that her possession may be confirmed. If by any circumstances it be found that she is not in possession then she may recover possession. She also asked for an account from the defendant of any rent that the defendant might have realised from the tenants. The case of the defendant No. 1 who alone has contested this case is that he is the real owner of the property and that Section 66 (old Section 317 of the C.P.C.) is a bar to the suit.

(2.) The Trial Court found that defendant No. 1 was the benamdar of the husband of the plaintiff, that the plaintiff, had been in possession from the date of purchase up to the institution of the suit, and that the defendant was liable to render accounts to the plaintiff. He found that the plaintiff's suit was not barred by the provisions of Section 68 and ordered that her jamai title and nishkar title to the lands in suit should be declared. The defendant was restrained from interfering with her possession. He was also to render her accounts. Defendant No. 1. appealed to the District Court. The learned Subordinate Judge held that the plaintiff had been dispossessed from the land before the suit and was not now in possession, that the defendant was. the benamdar of the plaintiff's husband, that, Section 66 was a bar to the.suit and,ordered that the suit of the plaintiff so far as it related to the jamai right of the plaintiff would be dismissed.

(3.) The plaintiff has appealed to this Court.