TIRTHAMAYI DASSI Vs. ATIKULLA

JUDGEMENT

(1.) The fasts of the case out of which this appeal has arisen are these.

(2.) The plaintiff brought a suit for recovery of possession of a 4-annas share in some 8 and odd kedars of land. Her case was that one Nabin Chandra Deb who was a co-sharer in a certain mehal Madanraja had opened a separate account for this share. The land now in dispute lies within this mehal. In 1906 Nabin made a gift of his share covered by the separate account No. 69 to his son-in-law Girish Chandra. Pour days later Girish granted a patni lease of the major portion of the land to his brother-in-law Satis who is the respondent in the present appeal. The rent reserved was Rs. 361. After that the mehal was sold several times for arrears of revenue. Finally in 1913 it was once more sold for arrears of revenue, and purchased by one Baikuntha, Dianath Ram (the husband of the plaintiff) and some others. 2. It was again put up for sale on Janua-ary 15th, 1915, and purchased by Dianath and one Naba Kishore. In 1916 Dianath executed a conveyance in favour of the present plaintiff his wife of 4-annas share of Estate No. 69. Her name was duly registered in respect of this share. In August 1918 Dianath made a deed of gift of the same share to the present plaintiff (his wife). She in September 1918, brought the present suit against one Atikulla for a declaration of her title and recovery of possession. Atikulla set up the title of the patnidar. Satis in defence. Satis was then added as a defendant and the suit proceeded. The trial Courts dismissed the suit holding that the patni was really in existence and could not be avoided or annulled. On appeal to the District Court the Subordinate Judge held tnat the patni lease was not a real transaction and gave a decree declaring the plaintiff's title and allowing her possession through Defendant No. 1 Atikulla. Defendant No. 2 Satis the added defendant appealed to this Court.

(3.) The ease was sent back to the lower appellate Court to decide the appeal after determining whether the patni tenure was a real transaction. The lower appellate Court held that the patni was a real transaction and so dismissed the appeal and confirmed the judgment of the trial Court which had dismissed" the suit. Against this decree and judgment the plaintiff has appealed to this Court. It is admitted that the decision of the appeal depends now entirely on the question whether the patni granted to Satis was or was not a real transaction. Mr. Chakravarti who has appeared for the plaintiff-appellant has raised three points.