GANI MIA Vs. WAJID ALI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, first Court, Sylhet, reversing the judgment and decree of the learned Munsif, second Court, of the same place. The plaintiff, who is the respondent before me and who is a minor, instituted the suit for ejecting the defendants, on the ground that they were the tenants of his predecessors-in-interest (defendant 13) but had forfeited their tenancy by denial of the title of the plaintiffs predecessor-in-interest. The plaintiff's case is that the lands in suit belonged to his grandfather (original defendant 13) who had inducted the defendants on the land as tenants in the year 1322=1915. In the year 1919 he, defendant 13, instituted a suit against the defendants for recovery of arrears of rent, but on the defence taken by some of them that there was no relationship of landlord and tenant, he withdrew the said suit.

(2.) The Records of Rights prepared under Chap. 10, Ben. Ten. Act, and finally published in the year 1918 having recorded the lands as the lands of defendant 13 and defendants 1 to 12 as tenants under him, the said defendants (Nos. 1 to 12) instituted a suit against defendant 13 in the year 1925 being (No. 570 of 1925) alleging that the entry in the record of rights was wrong. In that suit they alleged that they themselves were co-owners of defendant 13 and that there was no relationship of landlord and tenant between them and defendant 13. They prayed for confirmation of possession as such owners. This suit was decreed by the first Court,, but dismissed by the Subordinate Judge on appeal, whose decision was confirmed in second appeal by this Court. This Court held that defendant 1 to 12 were not co-owners, but were tenants of defendant 13, having been inducted on the land as such in the year 1322. This Court pronounced the judgment on 2 June, 1930, and that judgment establishes the fact that defendants 1 to 12 were tenants of defendant 13 at the date when the plaint in Suit No. 570 of 1925 was filed.

(3.) On 8 August 1930, defendant 13 made a gift of the property in suit, to the plaintiff, his son's son, who with his father was then living with defendant 13. Defendant 13 delivered over to the plaintiff's father the papers which 1 take it, meant the documents of title and documentary evidence to prove the title of defendant 13, and defendant 13 also asked defendants 1 to 12 to make over possession to the plaintiff. On 19 May 1931 the suit in which the appeal arises was filed, defendant 13 who was then alive was served with summons but did not appear. On his death his three sons were substituted. They did not challenge the gift to the plaintiff and one of them, namely the plaintiff's father, has supported the gift by his evidence. Of the defendants 1 to 12 only defendants 1, 5, 6 and 7 contest the plaintiff's claim. In paras. 9, 15 and 16 of the written statement the position is still maintained by them that defendants 1 to 12 are owners and not tenants. The written statement proceeds on the footing not that the tenancy is still subsisting and has not been forfeited but that there was never any tenancy under defendant 13. The plaintiff's title is also challenged.