JNANENDRA NATH MUSTAPHI Vs. DUKHIRAM SANTRA

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of title and recovery of possession of a raiyati holding and for a declaration that the Plaintiff's right thereto was not affected by the decree in Rent Suit No. 418 of 1915, or the sale thereof under that decree. The Appellant purchased the raiyati in execution of the said rent decree for the sum of Rs. 540.

(2.) The Plaintiff rested his claim to the land on a two-fold basis. He claimed it as the nishkar land of one Tincowrie Mukerji which he had purchased at a road-cess execution sale, and also alternatively by virtue of private purchase from, one Tushtu Das, who held a korpa tenancy of the disputed lands under the Defendants Mustaphis. The trial Court found that the Plaintiff had failed to establish either claim, and dismissed the suit with costs to the contesting Defendant. On appeal the learned Subordinate Judge of Hughly confirmed the finding of the Munsif so far as it related to the lakheraj title, but allowed the appeal so far as the Plaintiff's right by purchase from. Tushtu Das was concerned, and the suit was remanded to the Court of first instance for a finding whether the notice contemplated by Section 158-B(2) of the Bengal Tenancy Act had been served on the co-sharers.

(3.) Against that order of remand there was an appeal to this Court with the result that by consent of the parties the decree of the lower Appellate Court, so far as it related to the effect of the Defendant's rent decree and directed that the suit, be remanded to the trial Court to be decided in accordance with the directions therein contained, was set aside. As regards the lakheraj title claimed by the Plaintiff the judgment was directed to be treated as final so far as the lower Appellate Court was concerned, and in lieu of the decree and of the portion of the judgment set aside, an order was made under Rule 25 of Order 41 of the Code of Civil Procedure directing the trial Court to determine the question whether notices under Section 158-B(2) of the Bengal Tenancy Act were duly served by the Respondent on the co-sharer landlords. A direction was made that the trial Court would be at liberty to take such additional evidence as the parties might wish to adduce on the point, and it was ordered that the appeal would remain on the file of the lower Appellate Court which on receipt of the finding of the Court of first instance would dispose of the appeal in the usual way and make a decree embodying the decision already arrived at as regards the lakheraj title claimed by the Plaintiff, and the decision which might be ultimately arrived at as regards the effect of the rent decree. Opinion was expressly reserved upon any questions of law arising between the parties.