LAWS(PVC)-1928-12-10

DURGA PRASAD THAKUR Vs. TARAKESWAR MOULIK

Decided On December 13, 1928
DURGA PRASAD THAKUR Appellant
V/S
TARAKESWAR MOULIK Respondents

JUDGEMENT

(1.) This is an appeal by the defendant and arises out of a suit commenced by the plaintiffs for recovery of possession of the lands described in the plaint about 13 1/2 cottas in area after establishment of their title to the same.

(2.) The defence of the defendants was that the plaintiffs or their vendor Harinath had no title to the suit land which originally belonged to one Barani Bewa, defendants grandfather's sister who made a verbal gift of the land to the defendant's father Jharu Mondal and that the defendant after inheriting the land from Jharu Mondal sold the land to Durga Prasad, who is the appellant before me. The Munsiff decreed the plaintiff's suit. Against this decision an appeal was taken by the defendants to the Court of the Subordinate Judge of Rajshahi and the learned Subordinate Judge after taking additional evidence at the appellate stage has affirmed the decision of the Munsiff.

(3.) A second appeal has been taken to this Court by defendant 7 who has purchased the interest of defendants 1 to 4 and Sir Benode <JGN>Mitter</JGN> appearing for defendant 7 has contended that the case should be remanded to the lower appellate Court on account of various errors of procedure which have affected the merits of the case. It is said that the lower appellate Court having proceeded to decide the appeal by the reception of inadmissible evidence the appeal should be reheared after excluding the additional evidence and other inadmissible documentary evidence. It appears that the plaintiff's case was that the jote in question belonged to one Harinath and that they purchased from Harinath, the said jote on 13 August 1919 and that Harinath and after him plaintiffs possessed the land in suit through their tenant one Chhabuli who is defendant 5 in the present litigation. The case of the defendant, as I have indicated, is that the jote originally belonged to Barani and that Barani made an oral gift to her nephew Jharu Mondal, that defendants 1 to 4 are the heirs of Jharu and that they were possessing the disputed land through defendant 5. There was previous rent suit against Chhabuli which was instituted by the present plaintiffs on the basis of their purchase of the jote from Harinath and on the basis of a re-settlement in Barga of the disputed lands with defendant 5 in the year 1326 corresponding to 1907. In that suit it was decided that there was no relationship of landlord and tenant between the present plaintiffs and defendant 5 and it was held that the plaintiffs were not possessing disputed land through Chhabuli i.e. defendant 5,, In that suit it was also held that the entry in the Record-of-Rights that Hari Nath was possessing the land through defendant 5 was a doubtful entry. The learned District Judge who decided the appeal from the decision of the rent suit found that the circumstances were such as to show that there was no relationship of the landlord and tenant between plaintiffs and defendant 5 and there was no agreement to pay Barga rent. The learned District Judge left open the question of plaintiffs titles.