ARUNADOYA CHAKRABARTY Vs. MAHAMMAD ALI

JUDGEMENT

(1.) This appeal arises out of a suit which was instituted by the plaintiffs to recover khas possession of certain lands on declaration of the plaintiffs maliki right thereto. The plaintiffs case was that one Rahamat Sheikh held an ordinary jote, that he abandoned the same and went away from the village without making any arrangements for payments of rent of the jote and that the plaintiffs wanted to take possession of the lands but were resisted by the defendants. Of the defendants against whom the suit was instituted only one, viz. defendant 5, filed a written statement and contested the suit. The substantial defence of defendant 5 was that Sheikh Rahamat's sons sold a portion of the lands to defendant 5 and his brothers (one of whom was defendant 6) in 1316, that since the said sale defendant 5 and his brothers have been in possession of the lands which they had purchased, and the heirs of Sheikh Rahamat were in possession of the remaining lands of the jote. The defence thus put forward was that there was no abandonment but only a transfer of a part of the holding.

(2.) The trial Court found that there was a complete abandonment of the holding and decreed the suit except as against defendant 6 who died during the pendency of the suit. He found that defendant 6 had left a mother who was alive, and though the latter was not brought on the record as the heir of defendant 6 the suit would not fail. Defendant 5 appealed from this decision. The Sub-Judge-framed three questions for determination: 1st, Is the suit maintainable against the other defendants without making the legal representative of the deceased defendant 6 parties to the suit; second, Was there any abandonment of the holding held by Rahamat and his successors; and third, Are plaintiffs entitled to khas possession. He did not determine the second and the third questions as his answer to the first question was in the negative. The suit was therefore dismissed. The plaintiffs have then appealed to this Court.

(3.) The suit, as framed in the plaint, was against the heirs of Rahamat Sheikh who were defendants 1 to 3, the purchasers who were defendants 4 to 6, and the subtenants defendants 7 and 8. It was, as has been already stated, a suit for khas possession.