MT KHAYERUNNESSA BIBI Vs. FAZAR ALI SARKAR

JUDGEMENT

(1.) In the suit out of which this appeal has arisen the plaintiff sued to recover khas possession of some three plots of land set forth in the schedule to the plaint after declaration of her title thereto. Her case was that the lands in suit together with some other lands formed the raiyati jote of one Arashali Prodhan who was the great-grandfather of the plaintiff. Arashali died leaving behind him four sons, Manik, Baramdi, Nandoo and Sonaulla. Nandoo and Sonaulla died childless and so the jote came into possession of the plaintiff's grandfather Manik and his brother Baramdi. Manik died and was succeeded by his son Azim. There was a private partition between Baramdi and Azim by which Azim got possession of the three disputed plots of land whereas Baramdi got the other plots. On the death of the plaintiff's father Azim the plaintiff came into possession as heir and was in possession of the disputed lands till Bhadra 1326 when she was dispossessed by the defendants and hence this suit.

(2.) Defendants Nos. 1 to 6 contested the suit. Their contention first of all was that the plaintiff had no title to the land because Azim predeceased his father Manik. Further they alleged that the holding in question was sold in execution of a decree for rent obtained against Baramdi and that as Baramdi was the only recorded tenant in the landlord's sherista the entire holding passed and this holding was purchased by Defendant No. 1 Fazaruddki. There was also a further plea of the bar of limitation.

(3.) The learned Munsif found in favour of the plaintiff and gave her a decree for khas possession of Survey Plots Nos. 1043 and 1045 and of the eastern and southern one pakhi of Survey Plot No. 1044. He further ordered that she would possess these plots exclusively in her 4 annas share in the entire jote. The learned Munsif also found that Azim did not predecease his father Manik. He further found that the suit was not barred by limitation. The defendants appealed to the District Court and the learned Subordinate Judge who had heard the appeal held that Azim did not predecease Manik. He, therefore, held that the plaintiff had title to the land. He, how ever, held that the decree in execution of which the property was purchased by Fazaruddin was a rent-decree and by this decree the holding itself passed. In this view of the case he decreed the appeal and entirely dismissed the plaintiff's suit.