R.P.Mookerjee J. - (1.) This is an appeal on behalf of defendant 4 in a suit brought by the plaintiff for declaration of her title to the disputed lands and for recovery of khas possession thereof.
(2.) The only material question in issue in this appeal is whether Rajlakshmi Dasi, defendant 4, has got a subsisting right of tenancy or not. It will not be necessary to go into the series of litigations in respect of this holding but we may limit ourselves to the relevant facts pertinent for a decision of the only point which is raised in this appeal. The holding in question originally belonged to three brothers Krisha, Rakhal and Tulsi. The plain-tiff Sushilabala is the daughter-in-law of Krishna. Defendant 2, Sashi, is the son of Bakhal and defendant 4, the appellant before this Court, Rajlakshmi, is the wife of Tulsi. In 1929, the landlords obtained a rent decree against the three brothers in respect of arrears of rent due in respect of this holding. In the execution proceedings which followed one Bishnupada Chakravarty purchased the holding in July 1931 and ultimately took possession. The next year, it is alleged by defendant 4, Bisbnupada Chakravarty had created an under, raiyati tenancy in favour of Rajlakshmi, defendant 4. The creation of this subordinate tenancy is denied by the plaintiff. There had been successive suits for the realisation of arrears of rent and in one of those, namely, Rent Suit No. 244 of 1938, brought by one set of landlords, namely, the Banerjis, impleading the other co-sharer landlords, a decree was obtained. In execution of the said decree the decree-holders, the Banerjis, purchased the holding. In these proceedings Sushila who is alleged to have purchased the interest of the tenant in execution of an earlier rent decree as also Bisbnupada were made parties. After the purchase by the Barerjis an application for setting aside the sale was filed by Railakshmi under Section 174, Bengal Tenancy Act, alleging that she was interested in the property sold. In the presence of Sushila and Bishnupada among others the sale was set aside and Sushila got back the property. Subsequently, Rajlakshmi brought a suit for contribution against Sushila and Bishnupada for realising a portion of the amount deposited by her to have the sale set aside. Rajlakshmi's suit bad been-brought before the present suit was filed on 11th December 1943 in the Court of 2nd Munsif Baruipore. The suit out of which this appeal arises was filed by the plaintiff for declaration of her title and for khas possession on the allegation that Rajlakshmi bad neither any title nor any right to possess a portion of the holding. While this suit was pending in the trial Court, the suit for contribution brought by Rajlakshmi was decreed. One of the issues raised in the said suit for contribution was whether the under-raiyati as claimed by Rajlakshmi actually existed or not. That point was decided in favour of Rajlakshmi. As the suit was brought in the Court of Small Causes, the decision in that suit would not be res judicata in the present proceedings. It was, therefore, necessary for the Court to go into that issue once again and to come to a decision on the facts and materials available.
(3.) The trial Court dismissed the plaintiff's Claim as regards khas possession on the ground that the plaintiff was estopped from raising the plea that defendant 4 Rajlakshmi was not a tenant under her as she had not raised any objection to Rajlakshmi filing the application for setting aside the sale which had been brought about by the Banerji landlords in execution of the decree in Rent Execution case 368 of 1939 while executing the decree obtained in Rent suit No. 244 of 1938. The learned Munsif further held that on the evidence Rajlakshmi had been able to prove that the tenancy as alleged by her had been created by Bishuupada while his interest subsisted and the said tenancy had not been terminated legally.;