SURENDRA NATH RATH Vs. SAMBHU NATH DOBEY

JUDGEMENT

(1.) This appeal arises out of a suit which was instituted by the plaintiffs for certain declarations, namely, that the plaintiffs have got brahmottor niskar right to the plaint lands, that the defendants 1 to 8 are not the landlords of the plaintiffs, and further that the solenama and the solenama decree that were respectively filed and passed in Suit No. 958 of 1918 were not binding on the plaintiffs and for other reliefs. The suit has been dismissed by both the Courts below and the plaintiffs have thereupon preferred this second appeal to this Court. Shortly stated, the facts which led to this litigation are as follows: The plaintiffs are the sons of defendant 9 in the suit. The plaintiffs case is that they belonged to a family governed by the Miteksbara school of law; that defendants 1 to 8 instituted a rent suit being Suit No. 958 of 1918 against their fatfier, the defendant 9, and in that suit the defendant 9 filed a solenama, and a decree was ultimately passed on the basis of that solenama. The plaintiffs case is that the defendant 9 did not in that suit disclose that he and the plaintiffs were members of a family governed by the Mitakshara school of law but that, on the other hand, defendant 9, in his written statement, asserted his exclusive title to the lands which formed the subject-matter of the suit and, although the lands were in point of fact the plaintiffs brahmottor niskar lands, defendant 9 ultimately filed a solenama in collusion with defendants 1 to 8, and, acting under their influence, agreeing to pay rent for the lands at the rate of Secs.5 per year. The plaintiffs case shortly stated is that this solenama is not binding on them and that they are entitled to the declarations which they sought for in the present suit.

(2.) The defence of defendants 1 to 8 was that the lands are not brahmottor niskar lands, but are lands paying rents and have been recorded as such in the settlement records. As regards the solenama : their case was that it was not vitiated by collusion or undue influence as alleged on behalf of the plaintiffs and furthermore that it was a bona fide and binding document.

(3.) The Court of first instance held that the family was governed by the Dayabhaga school of law and that defendant 9 the father had acted perfectly bona fide in the matter of solenama and that, as a matter of fact the lands were rent paying and accordingly the plaintiffs suit should fail. The learned District Judge has affirmed the decision of the trial Court. He has held, however, that the family is governed by the Mitakshara school of law, but that in the matter of compromise that was entered into by defendant 9 with the plaintiffs in Suit No. 958 of 1918, the said defendant acted perfectly bona fide and that the said compromise had greatly benefited the other members of the family including the appellants. He has held that the document of 1272 upon which the plaintiffs relied for the purpose of establishing their niskar brahmottor right to the property was not genuine and that the plaintiffs had accordingly failed to prove that they had any such right. He has held that, on the other hand, the respondents proved a chitta and a jamabandi which contained the signature of the appellants father and which showed that the lands were held under the said defendants and that the annual rental of the tenancy was Rs. 8-15-6 exclusive of cesses. He has further observed that, inasmuch as by the compromise decree the rental of the tenancy was reduced to Rs. 5, the compromise was to be considered as being beneficial to the plaintiffs. He has characterised the suit as not being a bona fide one and has observed that defendant 9 who is the karta of the family has kept himself in the back ground and has put forward his minor sons to institute the present suit only in order to get rid of the solenama and the decree in Suit No. 958 of 1918.