SURJA PROSAD THAKUR Vs. RAJMOHAN TOPEDAR

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit to recover possession of 33 bighas odd of land in Mouzah Nathur Kona as appertaining to taluk Sarapdi Khan. The plaintiff is the owner of 5 annas 6 gundas 2 karas 2 krants share in the taluk, and seeks to recover possession of that share in the 33 bighas odd. In 1885 Brojo Mohun Biswas, father of Nobin Chunder Biswas, was the owner of taluk Anandiram Biswas and of certain shares in taluk Sarapdi Khan. On the 2nd of Bhadro 1292, corresponding to the 17 of August 1885, Brojo Mohun Biswas mortgaged taluk Anandiram Biswas and another property to the ancestors of the defendants. More than two years biter the mortgage, that is in December 1887, Ram Sankar Bhaduri, who is one of the co-sharers in taluk Sarapdi Khan, brought a suit for partition of that taluk against the present plaintiff, and Nobin Chunder Biswas, who at that time was the owner of 6 annas 13 gundas 1 kara 1 krant share of that taluk and also against the owner of the remaining share. The decree in that suit was made on the 29 of June 1895. During the pendency of this partition suit, that is, in January 1890, the ancestors of the present defendants, that is the mortgagees, instituted a suit upon their mortgage and obtained a decree on the 24 February 1890. In execution of that decree taluk Anandiram Biswas was sold and purchased by the mortgagees on the 21 of January 1892. Under the partition decree, the disputed lands fell to the share of the plaintiff in lieu of his undivided one-third share in taluk Sarapdi Khan. The plaintiff alleges that he was in exclusive possession of the disputed lands after the decree made in the partition suit, that the defendants under their purchase at the auction-sale in 1892 obtained collusive rent decree against the tenants on the land and thereby dispossessed him and he, therefore, brings the present suit for possession of the lands in dispute.

(2.) The Courts below have held that the defendants, who were prior mortgagees, not being parties to the partition suit, are not bound by the decree made in that suit, and, further, that the plaintiff has failed to prove that the disputed lands appertain to taluk Sarapdi Khan. Upon these findings the Courts below have dismissed the plaintiff's suit.

(3.) The plaintiff filed in the Court of first instance a judgment and a decree of the year 1860 obtained by the ancestor of the present plaintiff against Brojo Mohun Biswas, under which, it is urged on behalf of the plaintiff, his ancestor obtained a decree for possession of 5 annas 6 gundas 2 karas and 2 krants share of the entire Mouzah Nathur Kona with other lands as appertaining to taluk Sarapdi Khan. This judgment and decree were apparently not relied upon before the Munsif, because no mention of these documents is to be found in his judgment. But they were strongly relied upon before the learned Subordinate Judge, and, he seems to have been of the opinion that, though the decree of 1860 showed that the entire Mouzah Nathur Kona belonged to taluk Sarapdi Khan its effect was considerably impaired, if not wholly destroyed, by the findings in the judgment in the partition suit of 1895.