BEJOY SANKAR SIKDAR Vs. RAJENDRA KUMAR BASU

JUDGEMENT

(1.) The present appeal arises out of a suit brought by the plaintiffs appellants to recover possession of certain chur land after declaration of their title on the allegation that this land formed portion of a Howla, the whole of which they had purchased at an auction sale for arrears of rent brought against the registered tenants of the Howla. The plaintiffs are the proprietors of a 7 anna share of the taluq in which the Howla is situated and some of the defendants are the proprietors of the remaining 9 anna share of the taluq, while the other defendants are the proprietors of a neighbouring taluq. The defence set up by the defendants, who are the proprietors of the remaining 9 annas of the taluq, was that, by the purchase in execution of the decree for rent, the plaintiffs had not acquired a title to the whole of the holding and, therefore, they were not entitled to the whole of the land in suit; while the defendants who are the proprietors of the neighbouring taluq, alleged that a certain portion of the land in suit fell outside the plaintiffs taluq and within their taluq. An enquiry seems to have been made by a Commissioner to ascertain whether the land in suit was included entirely within the taluq of which the plaintiffs are fractional proprietors or whether a portion of it fell outside the taluq and within the taluq of the defendants. After completing the enquiry, the Commissioner prepared a map in which he showed the land which fell within the taluq of the plaintiffs and also the land which fell outside. With reference to the land which fell outside, the lower Courts held that the plaintiffs claim could not succeed and we have nothing to do with it in this appeal. We have only to deal with the land which was found, on measurement, to fall within the taluq of which the plaintiffs are the 7 anna fractional co-sharers and the main dispute in this Court has been between the plaintiffs, the 7 anna proprietors, and the defendants who are the 9 anna proprietors of the taluq. The points at issue between the parties in the lower Courts appear to have been, first, whether under the sale, at which the plaintiffs purchased, the whole of the Howla passed or only a portion of it; secondly, if only a portion of the Howla passed what was that portion and, thirdly, whether any portion of the claim was barred by the doctrine of res judicata. Now, it seems that the plaintiffs in this case are the 7 annas fractional co-sharers of the taluq and they brought a suit against three persons, Ram Narain Guha, Annada Sundary and Raj Chandra Thakurta, to recover from them their share of the rent due in respect of the Howla and obtained a decree against those three persons and, in execution of that decree, put up the Howla to sale and themselves purchased it. The defendants in the lower Courts contended that what passed under the sale in execution of the decree, which the plaintiffs obtained, was merely the share or right, title and interest of the three judgment-debtors in the Howla, and that the whole Howla did not pass; while, on behalf of the plaintiffs, it was argued that the whole Howla passed under the sale. The Court of first instance held that the whole Howla passed and that the case for the defendants that only a portion of it passed could not be accepted. That Court also held that in respect of no portion of, the land in suit was the claim barred by res judicata. On appeal, after the case had been remanded to the Court of first instance for further findings, the lower Appellate Court has come to a directly contrary decision to that of the Court of first instance. The learned District Judge has found that the whole tenure did not pass, that all that passed was the 4 anna share of Raj Chandra Thakurta, which was the only share which at the time of the sale Raj Chunder, Ram Narain Guha, and Annada Sundary, the three judgment-debtors, had in the Howla and that the share of the other persons who were interested in the Howla did not pass. He has also held that, in respect of certain lands which are included in the present claim and which formed the subject of suit No. 37 of 1882, the claim of the plaintiffs was barred by the doctrine of res judicata. The plaintiffs have, therefore, obtained a decree for a 4 anna share only of the land in suit as included in the Howla excluding the portion which formed the subject of the previous suit.

(2.) Against this judgment and decree, the plaintiffs have appealed and, in this Court the same contentions have been advanced as were advanced in the Court of first instance.

(3.) It has been found by the Lower Appellate Court-and with those findings we are unable to interfere in second appeal-that the Howla originally belonged to Kali Sanker and Banga Chandra, who were brothers, each having an 8 anna share in it. Kali Sanker had two sons, a natural son, Ram Narain and an adopted son, Golak. Golak married Mukta Keshi and Ram Narain married Rashmoni. Kali Sanker, during his life-time and during the life-time of his two sons, made a gift of the whole of his 8 anna share in the Howla to his two daughters-in-law, 6 annas being given to Rashmoni, the wife of his natural son, and 2 annas to Mukta Keshi, the wife of his adopted son. Banga's share devolved on his death upon his daughter Armada Sundary. Rashmoni had three sons of whom one predeceased her and, before her death, she executed a Will in favour of her sons giving her six anna share in the property to her two sons, Lalit and Sasi. After her death, Lalit and Sasi sold 2 annas out of their 6 annas in the Howla to the defendant No. 100, Guru Nath Gupta. Mukta Keshi sold the 2 annas which she had received by gift from Kali Sanker to Guru Nath and Annada Sundary also sold 4 annas out of her 8 annas to Guru Nath. Annada Sundary sold the remaining 4 annas belonging to her to Raj Chunder, who was one of the defendants in the suit brought for recovery of rent by the present plaintiffs. According to these findings, therefore, the Howla was divided in the following manner: 4 annas was the property of Lalit and Sasi, 8 annas was the property of Guru Nath and 4 annas was the property of Raj Chunder.