BISHNUPADA SAMANTA Vs. MUNSHI MUHAMMAD ESMAIL SIRCAR

JUDGEMENT

(1.) This appeal is on behalf of the defendants in a suit instituted against them by the plaintiff for recovery of possession of some plots of land and for confirmation of possession on others. The learned Munsif decreed the suit, but on appeal the learned Subordinate Judge dismissed the plaintiff's claim for possession in respect of plot No. 4 but decreed his claim for possession of the other plots. The defendants have preferred this appeal against the said decree. In my judgment the appeal must succeed and the plaintiff's suit must be dismissed in its entirety.

(2.) To follow the controversy between the parties the following facts are relevant. One Gopal Samanta, the father of the defendants held an area of 2 bighas 19 cottas 12 chittaks of land as a tenant under the plaintiff. The lands in suit were admittedly comprised in the said tenancy. Gopal died in December, 1925. After his death the plaintiff dispossessed Gopal's sons, the defendants, from plot No. 4 of this suit and settled it with Gopal's brother. The defendants in this suit as plaintiffs instituted a suit against the plaintiff of this suit and their uncle. That said suit was numbered Title Suit No. 394 of 1926. In the plaint Gopal's sons stated that Gopal's tenancy consisted of 9 plots and that plot No. 4 from which they had been dispossessed was included in Gopal's tenancy to which they had succeeded by inheritance on the death of Gopal. They prayed for declaration of title and on such declaration for possession of plot No. 4. The respondent before me, who was there defendant No. 2, pleaded that Gopal had surrendered his tenancy and after surrender had taken a settlement for three years anly of plot No. 5, whereon he had built his hut. The said suit was decreed, the Court finding that the story of surrender and fresh settlement of plot No. 5 only to Gopal was a false story.

(3.) The judgment shows that the Court found that the tenancy of Gopal, as set up by his sons, was subsisting and had not been extinguished. The decree made was in these terms: "The suit is decreed with costs. Plaintiff's title to the lands in suit according to the admitted kabuliyat is hereby declared and the plaintiffs do get possession of the same by evicting the defendant."