SUBASHINI DASI Vs. HABU GHOSH

JUDGEMENT

(1.) The plaintiff is the appellant in this appeal. She is the widow of one Preonath Ghose. Preonath, Gokul and Sahadeb were three brothers. The plaintiff instituted the suit out of which this appeal arises, impleading therein the two brothers Gokul and Sahadeb, their, mother and certain other persons, who, for the sake of convenience, will be called the Kola defendants. The suit was for declaration of plaintiff's title to the 16-annas of the land mentioned in schedule ka of the plaint on the allegation that the said land had been acquired by her husband Preonath after be had separated from his brothers Gokul and Sahadeb. It was also for a declaration of her one-third share in the land mentioned in schedule kha of the plaint and for recovery of possession thereof on partition by metes and bounds on the allegation that her husband had the said share in the said land which belonged to the joint family of which the three brothers were the members. She also prayed for a declaration that the lease which had been granted by Sahadeb in favour of the Kola defendants in respect of some of the lands included in schedules ka and kha was fraudulent, and collusive and not binding upon her, and she, therefore, prayed for a decree for khas possession in respect of those lands, for mesne profits, accounts and other reliefs. The Munsif decreed the plaintiff's suit in part declaring her right to the 16-annas of the properties mentioned in Schedule ka and also declaring her right to an undivided one-third share of the properties mentioned in Schedule kha and awarding her a decree for possession in respect of the said one-third share on partition to be effected by a Commissioner to be appointed for the purpose. As regards the lease, Ex. A, the Munsif held that the said lease was unauthorized and not binding on the plaintiff. He gave the plaintiff a decree for khas possession in respect of the land of Schedule ka but in respect of the land of Schedule kha he held that she was entitled to partition only and not to a decree for possession as there was no evidence that the defendants had dispossessed her from any particular portion of it. He awarded her a decree for mesne profits in respect of the lands of Schedule ka and gave her liberty to bring a separate suit for future mesne profits and accounts.

(2.) The defendants thereupon preferred an appeal and the learned Subordinate Judge on appeal declared the plaintiff's title to an 8 annas share in the lands of Schedule ka and to a third share in the lands of Schedule kha and also awarded her a decree for possession by partition of those shares by metes and bounds; and he further ordered that there should be no decree for khas possession in respect of the lands covered by the lease Ex. A. As the said lease was not fraudulent or collusive and as the Kola defendants had bona fide obtained the lease from Sahadeb in their favour. He also set aside the decree for mesne profits.

(3.) The plaintiff thereupon has preferred this appeal to this Court. The appeal is confined to the lands covered by the lease Ex. A, it being contended that the findings arrived at by the learned Subordinate Judge are not sufficient to disentitle the plaintiff to a decree for khas possession in respect of the lands covered by the lease fix. A. It is urged that some of the findings arrived at by the learned Munsif on this question have not been touched or reversed by the learned Subordinate Judge and that it is necessary that the matter should be sent back to the learned Subordinate Judge in order that he may arrive at proper findings and pass a proper decree.