SURESH CHANDRA DAS Vs. GOBINDA CHANDRA MANDAL

JUDGEMENT

(1.) The facts of this case are that the plaintiff obtained a decree against the defendants who were his tenants and in execution of that decree the defendants holding was purchased by the plaintiff on 21 March 1918. The plaintiff's case is that he obtained possession of it through Court on 23 December 1918 but did not get actual possession as the defendants refused to vacate it. The present suit by the plaintiff is for recovery of possession. The plaintiff's suit succeeded in the trial Court but the learned Subordinate Judge dismissed it and hence this appeal by the plaintiff.

(2.) The learned Subordinate Judge has disposed of this case on two principal grounds. The first is that there had been a recognition of the defendants by the plaintiff since his purchase in 1918. On that point his finding is based on the facts that some of the cosharers of the plaintiff brought suits for rent against the defendants after 1918 to which suits the plaintiff was made a pro forma defendant. In the Collectorate the plaintiff submitted some hastabuds in which the defendants were shown as tenants in occupation of the holding.

(3.) With regard to the first ground the mere fact that the plaintiff was a pro forma defendant in a suit for rent for a period subsequent to 1918 by other cosharers does not constitute any recognition by the plaintiff. The only way to prove recognition by the plaintiff of the defendants after the sale of the holdings was by proving that the plaintiff had accepted rent from the defendants. On that point the learned Subordinate Judge has agreed with the trial Court in holding that the evidence adduced by the defendants to prove that the plaintiff accepted rent from the defendants is unsatisfactory. As to the second ground on which the learned Subordinate Judge relied, we think that the view taken by the trial Court is more correct, namely, that the hastabuds were filed by the plaintiff in the Collectorate for the purpose of showing the present assets of the tenure and as the defendants were in possession of the holding paying a certain amount of rent it was necessary that it should be shown in the hastabuds. This does not constitute a recognition by the plaintiff of the defendants tenancy nor does it estop the plaintiff from showing that the defendants are riot at any rate his tenants. The findings based on this ground cannot stand.