BIR BIKKRAM KISHORE MANIKYA BAHADUR Vs. DASHARATH RISHI

JUDGEMENT

(1.) These two appeals arise out of two suits, Nos. 17 and 18, for declaration of title and confirmation of possession of two different homesteads. In Suit No. 17 the plaintiff's case was that the disputed homestead formerly belonged to their father who left behind him his three sons, the two plaintiffs and the pro forma defendant, as his heirs; that the two plaintiffs thus acquired two-thirds share and the pro forma defendant one-third share, all being in joint possession of the homestead though in separate occupation of the different huts therein : that they held the same under the Maharajah of Hill Tipperah; that in 1906 the Maharajah obtained a decree for ejectment against the three brothers but the decree was never, executed and the three brothers remained in possession as before; that subsequently one of the brothers, namely, the pro forma defendant, executed a kabuliyat in favour of the Maharajah for a term of five years from 1318 to 1322; that on the expiry of the said term the Maharajah obtained another ejectment decree against the pro forma defendant and attempted to pull down the huts in execution of the decree. The two plaintiffs then instituted the suit for declaration of their niskar title to a two-thirds share in the homestead for confirmation of possession therein and for an injunction restraining the Maharajah from interfering with the plaintiff's possession. In Suit No. 18 the facts were somewhat similar except that the plaintiff therein claims a one- half share in the homestead concerned in that suit.

(2.) The Munsif decreed Suit No. 17 declaring the plaintiff's title, to a two-thirds share and confirming their possession therein and granting the injunction prayed for; the plaintiffs niskar title not being proved, he dismissed Suit No. 18.

(3.) There were appeals from both the decisions by the plaintiffs in Suit No. 18 and the Maharajah in Suit No. 17. There were some cross-objections as regards the order for costs, but with these we are not concerned. The Subordinate Judge upheld the Munsif's decision in Suit No. 17 and reversed his decision in Suit No. 18 and gave the plaintiff a decree therein. The Maharajah has appealed.