P L D 1961 Dacca 99 (PLP)

This appeal is by the principal defendants. It arises out of a suit for khas possession and confirmation of possession on declaration of the plaintiff's title to the suit land.

2. Briefly stated, the case of the plaintiff is as follows : The disputed land originally belonged to 5 brothers Sariatulla, Atiqulla, Latibulla, Khatibulla and Nazibulla. They possessed the disputed plot Nos. 1 and 2 in khas and plot Nos. 3 to 5 through tenants. Nazibulla and his nephews Jalal and Rangila mortgaged the disputed plot No. 2 to the plaintiff and put him in possession of the same. As regards plot No. 3, the plaintiff was tenant under those live brothers. Defendants Nos. 3, and 4 were tenants in plots Nos. 4 and 5 respectively. Defendants 1 and 2 possessed the plot No. 1 on the strength of their purchase from Nazibulla and his nephew Jaloi, Rangila and Jahura, Nazibulla and his co‑sharers contract to sell the entire disputed land to the plaintiff' and accordingly they executed a kabala in his favour on 17th Chaitra 1333 B.S. But they did not register the kabala on one pretext or the other. So the plaintiff brought Title Suit No. 212 of 1930 for enforcement of the contract. That suit was decreed on compromise. According to the terms of that compromise defendants Nos. 1 to 10 of that suit were to pay him some money and Rs. 250 was to be paid to him by defendant No. 12, who is defendant No. 1 in the present suit. But as the money was not paid the plaintiff` started money exe cution case and auction purchased the disputed land in execution of that decree, but as he did not get actual possession he brought Title Suit No. 19 of 1945 in the Court of the Subordinate Judge which also ended in compromise on 1‑8‑

45. By that compromise the plaintiff agreed to take 6 annas share in the disputed land but did not get possession. In the above mentioned title suit defendant No. 1 was not a party. The principal defendants brought Title Suit No. 264 of 1945 against the plaintiff for khan possession of plot No. 2 and got a decree for redemption and took delivery of possession in execution of that decree. The plaintiff, therefore, filed the present suit for declaration of his maliki right to the suit land to the extent of 6 annas share and for recovery of joint possession of plots Nos. 1 and 2 along with defendants 1 and 2 and for confirmation of possession through tenants in plots Nos. 3 to 5.

3. The suit was contested by defendants No. I alone. He denied the plaintiff's case. He admitted that the suit land originally belonged to 5 brothers mentioned above but asserted that after the death of Shariatulla leis heirs became separated from their uncles and after the death of Khatibulla, Atiqualla and Latibullah their heirs also became separated but Rangila, Jaloi, Jahura and Nazubulla, remained to joint mess and they got the suit land exclusively, Nazibulla, Rangila and Joloi mortgaged plot No. 2 to the plaintiff in 1331 B.S. Defendant No. 1 pur chased the entire suit land from Nazibulla and others by a kabala dated 11th Bhada 1335 B.S. and from that tune he is in possession of all the plots except plot No. 2 as it was under mortgage to the plaintiff. Then defendant No. 1 redeemed the mortgage and got possession of plot No. 2 also and he is in possession of plots Nos. 1 and 2 in khas khamar right and plots Nos. 3 to 5 through tenants. Therefore, it is contended by defendant No. 1 that the plaintiff has no right, title and interest in the suit land and the suit is liable to be dismissed.

4. The trial Court dismissed the suit. On appeal the learned Subordinate Judge set aside the judgment and decree of the trial Court and decreed the suit declaring 6 annas share of the plaintiff in the disputed land, but he refused to give joint possession as there was an amicable arrangement as regards possession. The Subordinate Judge held that the plaintiff could not get ejmali possession on those plots and he will get a decree only for declaration of his title to the extent of 6 annas share in plots Nos. 1, 2, 4 and 5 but that he cannot disturb possession of his co‑sharer in those plots without a suit for partition and his possession in plot No. 3 as tenant was confirmed with a declaration of his title in maliki right to the extent of 6 annas share. Hence this appeal.

5. It is contended by Mr. Nurul Amin, the learned Advocate for the appellants, that the plaintiff is not entitled to get any declaration against the principal defendants in view of the fact that before the plaintiff got the compromise decree in execution of which he purchased the property, his vendors Nazib, Rangila, Jaloi and Jahura sold the entire disputed land to the defendant and as such by the purchase in execution of the compromise decree he has not acquired any interest in the disputed land.

6. I am unable to accept this contention of the learned Advocate for the appellant as correct. It is admitted that the disputed property originally belonged to 5 brothers and defendant No. 1 though purchased entire suit property from some of the co‑sharers, he is not entitled to get mare than the share of his vendor in view of the case made out and found by the learned Subordinate Judge that there was no partition by metes and bound though the five brothers or their heirs were in exclusive possession of some land by amicable arrangement. I may point out that in solenama decree in execution of which the plaintiff is said to have purchased the property defendant No. 1, was also a party, but the execution of the compromise decree was for the amount payable by the defendants in that suit other than defendant No. 12 who is defendant No. I in the present suit as it appears from Exh.

4. From the sale certificate Exh. 7, it appears that this defendant No. I was not a party in that execution proceeding. But under explanation to section 47 of the Code of Civil Procedure he is a party to the decree and if any property of defendant No. 1 was sold in execution of that compromise decree, the defendant ought to have raised an objection, he being a party to the suit. When lie has not raised any such objection he cannot deny title of the auction‑purchaser now apart from the fact that defendant No. 1 by purchase has not acquired 16 annas interest in the disputed land, because his vendors had no 16 annas interest in it. In the circumstances, the contention raised by the learned Advocate for the appellant is of no substance.

7. But before 1 part with this appeal I must point out that when the learned Subordinate Judge found title to the extent of 6 annas and old‑share in the disputed land and that there was no amicable partition by metes and bounds among the co‑sharers, the plaintiff may not get a decree for khas possession. But I do not understand why he should not given joint possession with the defendants under O. 51 rule 35 of the Code of Civil Procedure. Therefore, I think the decree of the learned Subordinate Judge is to be modified and the plaintiff should be given a decree for joint possession with the defendants on declaration of his 6 annas and old‑share in the disputed land in the maliki right and his possession in plot as a tenant is to be confirmed.

8. The result, therefore, is that with the above modification the judgment and decree of the lower appellate Court are affirmed and the appeal is dismissed with costs. K. B. A. Appeal dismissed with certain modification.