NIRMAL CHUNDER BONNERJEE Vs. MAHOMED SIDDICK

JUDGEMENT

(1.) THIS suit was instituted on January 26, 1893." The plaintiff prays for a declaration of his ownership, and of his right to registration. The defendant alleges that he is owner. The property consists of several houses and parcels of land in Calcutta. Each party claims to be in possession. Each party derives his title from a lady named Said-un-nissa, who in the year 1858 was the undoubted owner. Neither party is or has ever been in actual physical possession of any part of the property, which has been let to tenants. The possession alleged on both sides consists in granting leases, obtaining kabuliats, and recovering rent. From the year 1880 onwards an irregular and indirect legal warfare has been carried on by the rival claimants, each suing a tenant of some portion of the property for rent. This suit is the first attempt to put the whole title directly in issue between the principal claimants. An objection has been taken to its form, but both Courts below have maintained it; and it seems to their Lordships not only the most convenient, but a strictly regular way of bringing the dispute to a close. In point of fact, the pleadings and evidence and judgments relate, not to the liabilities of this or that particular tenant or parcel, but to the validity of the rival claims to ownership as a whole.

(2.) THE suit was tried in the High Court of Calcutta on the Original side. The Original Court decided for the plaintiff. The Court of Appeal differed, and dismissed the suit. That decision is challenged in the present appeal. It is unfortunate that the respondent does not appear, for the case is one of much intricacy, and though the appellant's counsel have done their best to present it with fulness and fairness, the want of an opponent is a sensible disadvantage.

(3.) IN order to apply the evidence it is necessary to understand the state of Said-un-nissa's family. In 1858 she was a widow, with one son named Woodor, who was born about 1845, and one daughter, Raj-un-nissa, who was married to Mozuffer, the grantee of the hiba, and had issue by him. Mozuffer also had issue by an elder wife, a son called Nabi. By Baj-un-nissa he had four sons and two daughters. The eldest son Was named Ali Akhtar, born about 1856, the second, named Mansur, died in 1884, and the third, Makdur, in 1887, both without issue, at what ages is not stated; the fourth, Masrur, is still living. One of the daughters is dead without issue ; the other is living and married. Mozuffer died either in 1876 or 1878, and his wife about two years after him.