CHANDRA KANT BHATTACHARYA Vs. ABDUL GOFOOR KHAN

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff for the establishment of his howla right to the disputed land as well as for the declaration that the rent decree obtained by defendant No. 1 against the plaintiff s vendor, the defendant No. 13, and the proceedings taken but in execution thereof are fraudulent and collusive and inoperative so far as the plaintiff is concerned.

(2.) The defence appears to have been twofold. Although in the issues framed for trial it does not appear precisely what that defence was, nor in the written statement is there any indication of what the main point of defence taken before us and before the Subordinate Judge really is; but we gather from the judgment of the 1st Court that the first defence taken was that the land being admittedly debuttur land, the shebait ought to have been sued in his capacity as trustee for the idol and not in his personal capacity. This point was taken before us but had not been seriously argued. The learned Munsif has fully disposed of it in the 1st paragraph of his judgment and the appellant did not venture to raise it again in the lower Appellate Court. It cannot, therefore, be raised here; bat we may express our finding that there is nothing in, it.

(3.) The real point which has been argued at considerable length before us is that the plaintiff, who is the assignee of the tenant of the former shebait is bound by a certain covenant of pre- emption in favour of the then shebait which appears in the lease. The findings of the Munsif on the facts entirely dispose of the defendant s case. But unfortunately, the Subordinate Judge has seen fit to whittle away all the Munsif s well reasoned findings and has come to certain rather vague findings of his own, and in the end he has agreed with the Munsif in the final order passed by him and has dismissed the appeal.