SARADA CHARAN MOZUMDAR Vs. KUMAR BIRENDRANATH ROY

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of possession of the properties in dispute on a declaration of the plaintiff s right thereto, and for other reliefs. The plaintiff s ease shortly stated is that there were certain debutter properties of the Nattore Raj family deities, that Raja Shibnath belonging to the younger branch (chota taraf) of the family inherited the same as shebait, and after his death his widow adopted Raja Ananda Nath, who accordingly obtained the said debutter properties by inheritance as shebait together with certain other properties acquired with the income of the debutter properties. Ananda Nath left four sons, Raja Chander Nath, Kumud Nath, Nagendra Nath and Jogendra Nath, who remained in possession of the properties in shebaiti right. The first three sons died leaving their widows but without any issue, and it is alleged that Jogendra Nath committed oppression upon his brothers widows who were helpless and obtained from them an ekrar by which the bulk of the properties was given up to him. The defendant No, 8, the widow of Nagendra Nath, under the authority given by her husband adopted the plaintiff on the 23rd Aghyan 1316, Hand the plaintiff thereupon as the heir of Nagendra Nath became entitled to 1/4th share of the estate as shebait, and to joint possession accordingly. The defendant No. 1 is the grandson and heir of Jogendra Nath and the plaintiff alleged that the defendants Nos. 2 to 6 on behalf of the defendant No. 1 and jointly with him are in possession of the estate and prevented the plaintiff from taking possession of the properties. The plaintiff further states that so far as he has come to know on enquiry Raja Shibnath and his descendants had a shebaiti right only in the properties, but that if the properties were found not to be debutter, then the plaintiff s title to 1/4th share by right of inheritance might be declared and a decree for joint possession in respect of the same might be passed. The plaintiff also claimed mesne profits and costs and further reliefs.

(2.) The defence denied that there was any authority given by Nagendra Nath to the defendant No. 8 to adopt or that the plaintiff was adopted by her, and it was alleged that the properties were not wholly debutter but were personal properties, some of which were charged with the sheba and worship of family deities, and that Jogendra Nath and his executors having been in adverse possession thereof for over twelve years the defendant No. 1 had acquired an indefeasible title thereto. Various other pleas were raised. The main pleas, so far as they are material for the purposes of the present appeal, were that the defendants Nos. 2 to 6 were in possession of the Estate as executors under the Will of Jogendra Nath, and could not be sued in their personal capacity, and that the plaintiff could not maintain the suit as a shebait and in his own right as owner.

(3.) Various issues were raised in the case, the first and third issues being as follows:---(1) Is defendant No. 1 and are defendants Nos. 2 to 6, as described in the plaint, in possession of the properties in dispute as alleged? Has the plaintiff any cause of action against them?