- (1.) The facts of this case may be started with the following genealogical table:-- It appears that Mohar Ali and Iman Ali were 56 the sixteen annas owners of the disputed properties. Mohar Ali died a bachelor and Iman died leaving his widow Sundari, but no child. Eventually Iman's heirs became the owners of the disputed properties as per (contd. on col. 2) shares mentioned below: - 1. Sundari = 0 - 4 annas 2. Sabera = 0 - 4 annas 3. Amena, Jindar, Jalil, Nilmani and Jahura = 0 - 8 annas 1 - 0- 0 Admittedly during the communal disturbances of 1950, all the abovementioned heirs of Iman Ali left the village and went away to the other side of the border. Sundari, so it appears old her interest in the disputed lands to pro-dfdt. Nos. 5 to 8 and delivered possession to them. The facts up to this stage are admitted by both the sides more or less. The aforementioned heirs of Iman Ali instituted Title Suit No. 296 of 1962 in the First Court of the Munsif at Krishnanagar through one Madar Mondal who held a power of attorney from them dated 7th May, 1962 to sue or to be sued on their behalf, for declaration of their title to the disputed land and for an order of permanent injunction restraining the principal defendants Nos. 1 to 3 disturbing with their possession therein through Madar Mondal. The defence was that the defendants Nos. 1 to 3 had been possessing the suit lands since 1950 and delivering shares of the produce to the heirs of lman Ali. Thereafter on the strength of a power of attorney executed by Jindar and Jalil on 12th Sept., 1961 authorising the defendant No. 3 Upen, to sell their eight annas shares in the disputed properties on their behalf, the said Upen sold the disputed properties in eight annas shares to the defendants Nos. 1 and 2 by a Kobala dated 1st Nov., 1962 who have been possessing the said properties by an amicable partition with the pro-dfdt. Nos. 5 to 8, for a period exceeding twelve years thus extinguishing the right of the plaintiffs to recover the possession of disputed properties, if any. The defence also challenged Madar's right to file and continue with the suit, since Amena had died on 18th Nov., 1962 and Jalil - a minor on the date of the execution of the power of attorney - had attained majority on the date the suit was filed.
(2.) The learned Munsif found the following:- 1. Amena was not alive and Jalil who was a minor and represented in the power of attorney by Jindar, attained majority and was made plaintiff No. 7 at his own prayer, and, therefore, Madar's right to sue on the strength of the power of attorney based as it was on the authority given by Amena and on behalf of Jalil stood terminated. So the suit was not maintainable. 2. In view of the sale effected by Upen Biswas, defendant No. 3 in favour of the defendants Nos. 1 and 2 on the strength of the power of attorney executed in his favour by Jinder and Jalil and the sale effected by Sundari in favour of Pro-dfdt. Nos. 5 to 8, the plaintiffs have no subsisting interest in the suit lands. 3. The defendants Nos. 1 and 2 and pro-dfdt. Nos. 5 to 8 have been possessing the suit lands and not Madar on behalf of the plaintiffs as claimed. Finding, therefore, that the plaintiffs have no title or possession in the suit-land, the learned Munsif dismissed the suit. The plaintiff preferred an appeal being T.A. No, 15 of 1969 in the Court of the Additional Subordinate Judge, Nadia. The learned Assistant District Judge who heard the appeal found as follows:- 1. Amena was alive and so the power of attorney executed by Amena and others in favour of Madar had not become inoperative. 2. Genuineness of the power of attorney allegedly executed by Jindar and Jalil in favour of the defendant No. 3 has not been proved. The sale deed executed by the defendant No. 3 in favour of defendants Nos. 1 and 2 also, therefore, loses its force. 3. The plaintiffs together, therefore, have twelve annas shares in the suit lands and the remaining four annas shares in the same were sold by Sundari to pro-dfdt. Nos. 5 to 8. The plaintiffs are entitled to get a decree declaring their said shares in the suit lands. 4. Since the plaintiffs were dispossessed from the suit lands during the pendency of the suit they are also entitled to recover their possession therein in respect of their shares therein. The learned Judge did not consider the effect of attainment of majority by Jalil on the power of attorney executed in favour of Madar. The defendants Nos. 1 to 3 came-up before this Court in second appeal, being S.A. No. 445, of 1971.
(3.) All the points urged by the defendants Nos. 1 to 3 before the two Courts below were also urged on their behalf before the Hon'ble Judge who heard the second appeal. Being of the view, however, that the decisions of the learned Subordinate Judge were alll decisions on fact and further that they were not perverse, the Hon'ble Judge refused to interfere with them and dismissed the appeal. Thereafter the plaintiffs put the decree to execution for recovery of possession of the suit lands after evicting the defendants therefrom, for recovery of costs etc. The defendants Nos. 1 to 3 filed an objection to it under S.47 of the Civil P. C. In the petition under S.47 the petitioners raised several objections against the execution case, I need not detail them here since the learned Munsif did not go into them at all and he rejected the petition on the ground that as the Executing Court he had no right to go behind the decree. Hence this revisional application.;