P.N.MITRA, J. - (1.) THIS is an appeal on behalf of the plaintiff under Clause 15, Letters Patent from a judgment of Blank J. in a suit for declaration of title to and recovery of khas possession of certain lands. The trial Court decreed the suit, but on appeal the learned Subordinate Judge, 2nd Court, Howrah, modified that decree by dismissing the plaintiff's claim for khas possession and giving him only a declaration of his title to the landlord's interest in the suit lands. Our learned brother has affirmed that decision of the lower appellate Court.
(2.) THE suit lands are C. S. Dag No. 2684, which is a tank, and C. S. Dag. No. 2683, which an adjoining garden. These plots formed part of a maurashi mokarari jama which belonged to one Harish Chandra Mondal. Harish executed a simple mortgage in respect of this jama in favour of the plaintiff. It was stated to us by the learned advocate for the appellant that this mortgage was made in 1921. In 1928, the plaintiff brought a suit upon this mortgage, being Title suit No. 83 of 1928, and obtained a decree. In execution of that decree he purchased the mortgaged property on 14th April 1931 and 9th September 1931 he took delivery of possession through Court. In the plaint the plaintiff made the case that since obtaining delivery of possession through Court he remained in khas possession until the defendants -dispossessed him on 20th Falgoon 1344 B. S. corresponding to 4th March 1938 on the allegation that they had a tenancy right in the suit lands. Plaintiff averred that the defendants never had any tenancy right in the lands and Harish had all along been in khas possession. Upon these averments the plaintiff brought his suit on 18th September 1940 for declaration of his title by auction purchase and for khas possession.
(3.) THE defendants filed their written statement on 12th December 1940. They put the plaintiff to proof of his title to the suit land, and they pleaded that they had a tenancy right in the suit lands under Harish since more than 50 years ago from the time of their grand father and the plaintiff's case of khas possession and dispossession in Falgoon 1344 was a false story. They said they had all along been in possession. They also pleaded limitation.;