P L D 1961 Dacca 259 (PLP)

CHOWDHURY, C. J.‑This appeal is by defendants Nos. 2, 16 and 39 ka and it arises out of the judgment and decree of the District Judge, Tipperah in Partition Appeal No. 100 of 1953 affirming those of the trial Court in Partition Suit No. 114 of 1952.

2. The facts, shortly stated, for the purpose of this appeal are that, according to the plaintiffs, the disputed land along with other lands originally belonged to one Srijut Khan Chowkidar and his sister Daya Bibi in 2/3rd and 1/3rd share respectively under the Tipperah Khas Mahal and the 1/3rd share of Daya Bibi was in her exclusive possession and recorded as such under the Khas Mahal in the survey of record of the year 1892. Daya Bibi and her three sons Abdul Gani, Fate Ali and Anwer Ali mortgaged their Ird share to one Golchera Bibi and proforma defendants in the suit. After the mortgage there was partition by metes and bounds between Srijut and his sister Daya Bibi and the entire disputed land fell to the Saham of Daya Bibi and it was recorded as such in the record of the District Settlement of the year 1914‑1917 and rent was fixed at Rs. 50‑2‑0 under section 104 of the Bengal Tenancy Act, but in that District Settlement, of the year 1917, the disputed land of schedule 2 was recorded in the possession of Abdul Gafur, defendant No.

16. The mortgagee, the heirs of Golchera and proforma defendants filed Suit No. 51 of 1927 against Daya Bibi and her three sons in the year 1927 but Abdul Gafur was not impleaded in that suit. In execution of the mortgage decree the disputed property was purchased by the mortgagee auction purchasers on 13‑6‑1935 which was condoned on 31‑1‑1936, and the auction purchaser plaintiffs took delivery of possession on 12‑2‑1936. Some of the mortgagee proforma defendants sold their interest to plain tiff No. 1, husband of Golchera and plaintiff No. 2 son of Golchera and thereafter there came the Petty Settlement in the year 1929 and in that Petty Settlement record of right the land of schedule 2 of the plaint which has been recorded in possession of defendant No. 16 Abdul Gafur in the District Settlement also was recorded exclusively in possession of defendant No. 16 and the rest of the disputed lands were recorded in the name of the heirs of Daya Bibi. Plaintiffs Nos. 1 and 2 sold a portion of schedule 1 to plaintiff No. 3 in 1940. Then plaintiffs Nos. 1 to 3 filed the present suit for declaration of their raiyati‑right and for khas possession after evicting the defendants on the allegation that when they went to take possession of the land in exclusive possession of Daya Bibi the other defendants did not allow them to possess and thereby dispossessed them.

3. The suit was contested by defendants Nos. 2, 16, 39 and 39 ka. The main defence, for the purpose of this appeal, they put up, in the trial Court is that the property did not belong to Srijut Khan and Daya Bibi but originally belonged to Manik Chowkidar and died leaving a son Srijut Khan, two daughters Nayan Bibi and Daya Bibi and one Daya Gazi married Nayan Bibi and had a son, Abdul Aziz of whose son is defendant No. 16 Abdul Gafur. On the death of Nayan Bibi, Daya Gazi married Daya Bibi and has got several sons and daughters by her. So, according to the defendant Abdul Gafur inherited a share from Daya Bibi's property through his father and they deny any partition between the co‑sharer and contended that the suit for possession as filed by the plaintiffs is not maintainable without a prayer for partition and it cannot be done on account of the defect of parties as all the properties of Manik Khan were not brought into the hotch potch and all the heirs of Srijut Khan and Daya Bibi have not been impleaded in the suit.

4. Before we proceed to consider the defence case we may point out that if their case is accepted then certainly Nayani Bibi and Daya Bibi both together will inherit 8 annas share and Srijut Khan will inherit the remaining 8 annas share and in that case the share of Daya Bibi and Nayani Bibi would have been 4 annas each but the plaintiffs' claim 5 annas and odd share, i.e., 1/3rd to be the share of Daya Bibi alleging that the property belongs to Srijut Khan and his sister Daya Bibi in 2/3rd share respectively. Both the Courts below found that the property belonged to Srijut Khan and his sister Daya Bibi in 2/3rd share. Both the Courts below also found that this 1/3rd share of Daya Bibi was in exclusive possession of Daya Bibi since 1892 which has been recorded in exclusive possession of Daya Bibi under the Tipperah Khas Mahal Survey on a separate Jama. That state of affairs according to the finding of both the Courts below continued upto the time of District Settlement in 1914 to 1917 with this exception that land of schedule 2 was recorded in exclusive possession of defendant No. 16 as a raiyati‑right under the Khas Mahal Survey in occupancy raiyati‑right on a payment of part of the jama of the parent khatians. The same state of affairs continued even in Petty Settlement of the year 1939. So both the Courts below found that though there is no partition by metes and bounds, Daya Bibi and her heirs were in exclusive possession of this Jrd share from the year 1892 on a separate jama as a separate tenancy under the Khas Mahal. In that view of the matter, both the Courts below decreed the suit for khas possession on the declaration of the plaintiffs' title to the disputed land overlooking the fact that some portion of the land, we mean the land of schedule 2 recorded in a separate khatian, is in the possession of Abdul Gafur, defendant No. 16 over 12 years and who has been found to have acquired no interest in the same by inheritance. Both the Courts below held that he being a son of Daya Gazi by his previous wife and came along with his father to live in the house of Daya Bibi he was allowed to possess the land of schedule 2 by way of compassion and permission and which is not even the case of either party in any Court. Against this decision defendants Nos. 2, 16 and 39 ka have preferred this appeal.

5. It is contended by Mr. R. R. Guha, the learned advocate for the appellant that in the suit as framed there cannot be any decree for khas possession after eviction of the defendants in view of the findings of both the Courts below that it is a joint property of Srijut Khan and his sister Daya Bibi to the extent of 2/3rd and 1/3Jrd share and the heirs of Daya Bibi and Srijut Khan were in possession of the same as a joint property and as such without a suit for partition there cannot be a decree for khas possession. We are unable to accept the contention of the learned advocate as correct in view of the finding that the disputed land is all along in exclusive possession of Daya Bibi and her heirs and out of it the land of schedule 2 is in possession of the defendant No.

16. It is no doubt true that the finding of both the Courts below is that there was no partition by metes and bounds amongst the co‑sharers but that does not justify that one co‑sharer in exclusive possession of specific plot of land should be dispossessed by another co‑sharer. If any such co‑sharer is dispos sessed from his specific land certainly he has got the right to recover possession of the land be was dispossessed. If anybody is aggrieved by such exclusive possession of a portion of joint land let him go to the partition suit for his remedy but so long that is not done then the possession of the co‑sharer of the specific land must be respected, subject to the determination of their question of title. So, we are unable to accept the contention of Mr. Guha, that suit for khas possession after evicting the defendant is not maintainable. But his second contention is of substance.

6. His second contention is that whatever may be the position, in view of the finding of both the Courts below that defendant No. 16 not being an heir to Daya Bibi is not entitled to possess any portion of the land of Daya Bibi but in fact he was in possession adversely to others for over 12 years at least from the year 1914 to 1917, when the District Settlement was prepared and finally published. We must say that it is a record of right prepared in respect of Khas Mahal land and comes under section 104‑J read with section 103‑B of the Bengal Tenancy Act. According to the provision of that section read with the Privy Council' case of Kumar Chandra Singh Dudhoria and others v. Mirhapur Zemindary Company Limited (46 C W N 802), the entries in the record of right were conclusive not only in respect of the amount of rent payable by the tenant but also in respect of the liability to pay rent. It is contended by Mr. U. K. Roy, the learned advocate for the respondent, that it is a rebuttable presumption under section 103‑B of the Bengal Tenancy Act, but their Lordships have pointed out in that decision as follows :‑ "It is not correct to say that sections 104‑A to 104‑J deal only with the amount of rent and not with the question of liability and that such question is only affected by the presumption of correct ness given to entries in the record of rights by section 103‑B or that an entry of rent in the Settlement Rent Roll cannot override contractual rights." Then, Mr. U. K. Roy contends that this question that defendant No. 16 has acquired title by adverse possession has not been raised anywhere. We must say the plaintiffs must succeed on the strength of their own case and cannot take advantage of the weakness of the defence case. We have already pointed out that the land of schedule 2 has been recorded in separate khatian on a separate jama in the possession of Abdul Gafur in occupancy raiyati‑right and it is from the year 1914 onwards. Plaintiff's must make out a case against defendant No. 16 before they were entitled to get a decree for khas possession on declaration of title to it. The plaintiffs have set up a case of possession followed by dis possession. They must prove possession wthin 12 years of the suit. Plaintiffs have failed to prove their case. Courts below held that they have filed the suit within 12 years from the date of delivery of possession through Court in 1936 after their purchase in auction sale execution of the mortgage decree. We have already pointed out that defendant No. 16 was neither impleaded in the mortgage suit nor in the execution sale. He is not bound by the decree or by the sale or by the delivery of possession through Court. Further his continuous exclusive possession over 12 years from before 1914 has been recorded in the District Settlement Khatian of 1914‑17 and in the Petty Settlement of 1939 which are conclusive.

7. In these circumstances, plaintiffs cannot disturb this possession. The learned District Judge is absolutely wrong to say that defendant No. 16 was allowed to possess the land by way of compassion or by permission. We cannot accept this finding as it is based on surmises and hypothesis is not warranted by evidence, either oral or documentary on record.

8. The result, therefore, is that we allow this appeal to the extent of the land of schedule No. 2 recorded in possession of defendant No. 16 and dismiss the appeal in respect of the rest of the land.

9. In view of the fact that the success is divided we do not propose to pass any order for costs. Each party will bear their own costs of this appeal. SIDDIKY, J.‑I agree with my Lord the Chief Justice. K. B. A. Appeal partly accepted.