RAJA PROMODA NATH Vs. KINOO MOLLAH

JUDGEMENT

(1.) These two Appeals Nos. 2001 and 2125 of 1906 are appeals against the decision of Mr. K.N. Roy, District Judge of Jessore, dated the 30 July 1906, in which he disposed of two appeals in two analogous suits. The first suit, to which Appeal No. 2001 relates was a suit brought by Raja Promoda Nath Roy for arrears of rent due under a qabuliyat, dated the 29th Kartik 1302, executed in his favour by the 6 defendants, who are the sons and widows or one are Farajuddin Mollah deceased. The other Appeal No. 2125 relates to a suit brought by Abdul Rashid, one of the minor sons of Farajuddin Mollah through his next friend Basir Mollah for a declaration that the qabuliyat of 1302 is not binding on him, that it was extorted by false intimidation, force, fraud and collusion, and that a decree obtained by the Raja Promoda Nath Roy in 1901 in the Court of the Munsif of Narail on the basis of this qabuliyat is wholly void. To this suit, the minor plaintiff Abdul Rashid made the Raja Promoda Nath Roy, as well as the widows and other sons of his father Farajuddin Mollah parties defendant. The Subordinate Judge decreed the rent suit and dismissed the suit relating to the qabuliyat. The District Judge has reversed his decision in both cases. He has held that the qabuliyat of 1302 was obtained by coercion and fraud. He has, therefore, set it aside, declared the rent decree of 1901 void and has dismissed Raja Promoda Nath Roy's suit for rent.

(2.) Raja Promoda Nath Roy who was plaintiff in the suit for arrears of rent, and defendant No. 1 in the suit for the cancellation of the qabuliyat and previous rent decree, now appeals. His grounds of appeal are (1) that the District Judge could not set aside the previous decree for rent: (2) that in any case he could not set it aside except in favour of the plaintiff Abdul Rashid: 15 C. 533; 15 I.A. 119 that in the suit for the cancellation of the qabuliyat, the plaintiff should not have been allowed to set up inconsistent pleas of coercion and collusion, fraud and undue influence: (3) that in deciding this suit the District Judge has misplaced the burden of proof: (4) that he has not considered the effect of the previous rent decree: (5) that the facts found are not sufficient to sustain the findings of fraud and undue influence; (6) that the District Judge has misconstrued the terms of the lease; (7) that he is wrong in finding that the mother of Abdul Rashid had no authority to execute the lease on behalf of her minor sons; and (8) that the whole qabuliyat cannot be set aside at the instance of the plaintiff, Abdul Rashid.

(3.) A preliminary objection has been taken to the hearing of the Appeals No. 2001 and 2125 on the ground that the Appeal No. 2001 is barred by limitation as against the respondents Nos. 1, 4 and 6, and Appeal No. 2125 is barred as against the respondents Nos. 2 to 7. The appeals were filed on the 12th. November 1906, and these respondents were not added till the 8 July. I may deal with this preliminary objection at once. These respondents were obviously not added owing to a mistake of the clerk of the appellant's pleader, Babu Satish Chunder Ghose. I would, therefore, overrule the objection and admit the appeals against these respondents.