NABADWIP CHANDRA CHAKRAVARTI Vs. BHAGABAN CHANDRA CHOUDHRY

JUDGEMENT

(1.) The Defendants Nos. 1 to 4 are the appellants in this appeal. The appeal arises oat of a suit instituted by the plaintiff for joint possession of the lands in suit with the Defendants Nos. 1 to 4 to the extent, of-the plaintiff's share. The suit was dismissed by the Gourd of first instance, but on an appeal preferred by the Plaintiff the Subordinate Judge has reversed that decision and decreed the suit. The facts shortly stated are there: The plaintiff alleges that there is a niskar named Amar Prasad Choudhury and Jai Narayan Choudhury in which he was a malik to the extent of 3 annas 15 gandas share. The owners of the other shares are the pro forma defendants Nos. 7 to 29. Another pro forma defendant in the suit, namely, one Aisali, had, under this niskar, a nontransferable occupancy holding which consisted of the land in suit. On the 5 Magh 1324 Aisali transferred the holding to the Defendant No. 4. On the 18th Bhadra 1328 the Defendant No. 1 purchased a share in the maliki right in respect of this niskar and became a co-sharer of the plaintiff. Thereafter, on the 11 Aswin 1328 the Defendant No. 1 purchased the disputed holding from the Defendant No. 4 who, as I have already stated, had purchased it from Aisali on the 5 Magh 1324.

(2.) Thereafter, the plaintiff instituted the present suit. His dose was that the Defendants Nos. 1 to 4 who were in possession of the lands under the aforesaid purchases had no right to remain there as the holding was non-transferable. The learned Munsif found that the plaintiff as well as the co-sharers of the niskar, with the exception of the Defendant No. 1, each possessed some nal lands exclusively, that the plaintiff himself is in khas possession of 5 kanis of niskar lands, that neither the plaintiff nor his co-sharers pay rent for these khamar lands to the other co-sharers, to whom such rent is due, that the plaintiff's wife is in possession of some lands of the raiyats in the niskar and pays, no rent for those lands, that the disputed land is at some distance from the plaintiff's bari and that although the defendants are in possession of the disputed lands they never denied the plaintiff's title and in fact are willing to pay rent to the plaintiff. On these findings he came to the conclusion that the plaintiff and his co-sharers were in possession of different plots of land in this joint niskar according to their convenience. Pie was of opinion that under the circumstances of the case and having regard to the findings to which I have referred the principle laid down in the case of Basanta Kumari Dassya V/s. Mohesh Chandra Shaha [1913] 18 C.W.N. 328 was applicable and in that view of the matter he dismissed the plaintiff's suit holding that the plaintiff may bring a suit for partition on which the rights of the parties to such plots of land as they may be exclusively entitled to, on such partition, will "be determined.

(3.) The Subordinate Judge was of opinion that the case on the authority of which the Munsif proceeded was not applicable and the point of difference which appeared to him as most prominent was that whereas in the case of Basanta Kumari Dassya V/s. Mohesh Chandra Shah a [1913] 18 C.W.N. 328, the point of time at which the cause of action arose to the plaintiff was one posterior to the point of time when the plaintiff and the defendants had become co- sharers, in the present case the purchase made by the Defendant No. 4 on the 5 Magh 1324, was really a purchase on behalf of all the defendants and the sale by the Defendant No. 4 to the Defendant No. 1 on the 11 Aswin 1328 was a colourable one and was effected merely for the purpose of showing that it was after the purchase of the maliki right by the Defendant No. 1 on the 18 Bhadra 1328, that the defendants came to be in exclusive possession of those lands. In my opinion, this distinction, that exists between the facts of the two cases, is not one which may be said to be at all material and in any event it is proper that on a question as to whether the equitable principle laid down in the case of Basanta Kumari Dassya V/s. Mohesh Chandra Shaha [1913] 18 C.W.N. 328, should be applied or not, one has got to see the state of facts as they existed at the time when the suit was instituted. Whether the Defendant No. 1 or the other defendants are holding the land in suit under a title which may be said to be good as against the plaintiff or not is not really the question which we have got to determine.