BARKAT ALI Vs. DAS (DOST) KAZI

JUDGEMENT

(1.) The plaintiffs brought this suit for declaration of their occupancy right in 8-annas share of a certain piece of land and for joint possession thereof with defend-ants Nos. 1 to 8.

(2.) It is found that the land in suit originally belonged to one Ram Gopal. Rani Gopal died leaving two sons Sarat Chandra and Ishan Chandra, Sarat Ghandra had two sons, Mohim defendant No. 9 and Sris defendant No. 10. Ishan had also two sons, Kailash defendant No. II and Nibaran defendant No 12. Ram Gopal left a Will and by that Will his property descended not to his sons but to his grandsons in equal shares. In May 1907 the plaintiffs obtained settlement of the 8 annas interest from the two grandsons of Rim Gopal defendant Nos. 9 and 10. About this time a money decree was obtained against the two sons, Sarat and Ishan In execution of that decree the tenure which had belong ed to Ram Gopal was attached as belonging to his sons, and his grandsons preferred a claim which was rejected. The whole tenure was sold on the 20th August 1908 and purchased by the defendant No. 11. No suit was brought to set aside the order in the claim case. Subsequent to the auction sale defendants Nos. 1 to 8 obtained a raiyati settlement from the defendants Nos. 11 and 12. The suit brought by the plaintiffs was dismissed in the Court of first instance, but has been decreed in the lower Appellate Court.

(3.) Three points have been argued in second appeal. The first is that the settlement by undivided 8-annas landlords cannot give the plaintiff any title. In support of this contention reliance is placed on an unreported case, Second Appeal No. 3402 of 1910 [Kader Bakhsh v. Ram- Manikya Dis (1)] decided by a Bench of this Court on the 24th February 1913. That decision does not support the appellants contention. In that case settlement was made by a person claiming the right to make settlement of a share in the land in which he had in fact no such right. The settlement was made in good faith and it was held that as the settlement was made by an undivided co sharer landlord, the principle of Binad Lal Pakrashi v. Kalu Pramanik 20 C. 708 (F. B.); 10 Ind. Dec. (n. s.) 477. could not apply. It was not held in that case that a person who really had the right of a co sharer landlord could create no rights in a tenant with whom he made settlement proportionate to his interest.