1. MAHMUD HUSAIN, J.--This appeal on behalf of the plaintiff is against the decision of the learned Additional District Judge reversing that of the learned Subordinate Judge passed in a suit for partition.
2. The case in short is that the plaintiff Jagannath Roy and defendants 1 to 4 Priya Nath, Sudhir, Nirode and Dhirendra are brothers. They are sons of one Rajani Mondal, full brother of Akrur Chandra Mondal. Defendants 5 to 6 are the transferees from the defendant No, 1 alone. Defendants 7, 8 and 9 are also transferees. Rajani and Akrur held a Korfa tenancy in respect of C. S. Khatians Nos, 270 and 271 relating to 13.13 acres and 9.58 acres respectively under the raiyati of Barkatulla Shaikh and others which was recorded in C. S. Khatian No, 269 of Mouza Deapara. The said raiyati of Barkatulla and others was auction sold in rent execution case and was purchased by Kali Prasana Debnath on 2-11-1932 who took delivery of possession on 4-2-33 annulled the under Khatians by notification under section 167 of the Bengal Tenancy Act. Therafter Priyanath, the defendant No, 1 alone took settlement of their ancestral properties of Khatian Nos, 270 and 271 by executing a Kabuliyat on 9-5-34. It is alleged by the plaintiff that this Kabuliyat was executed by the defendant No, 1 for himself and for his four brothers who were joint in mess and possessed the same in equal shares. The plaintiff demanded partition of his share being 3 annas 4 gandas which was refused and consequently he filed the suit.
3. Defendant No, 6 Radha Kanta Roy filing a written statement Radhakanta contested the suit and asserted that the property was not the Roy joint property of the plaintiff but the absolute property of Priyanath, the defendant No,
1. Under various transactions the defendant No, 1 represented himself as the absolute owner of the property and that defendant No, 6 and defendant No, 5 Gayaram purchased an area being 9.58 acres out of C. S. Khatian No, 271 on 15-6-45. Defendant No, 6 claimed protection under section 41 of the Transfer of Property Act.
4. The learned Subordinate Judge after hearing the parties decreed the suit. As against that the defendant No, 6 preferred an appeal and the learned Additional District Judge allowed the appeal and dismissed the suit. As against this the plaintiff filed this second Appeal.
5. Mr. Mahmudul Islam, the learned Advocate appearing for the appellant contended that this is not a proper judgment of reversal and that the lower appellate Court erred in law in dismissing the suit on a wrong conclusion that complicated questions of title being involved in this suit, a mere partition suit without payment of ad valorem court-fee was not maintainable and that the lower appellate Court erred in law in holding that the widow of Akrur was a necessary party.
6. In course of hearing it has been accepted as per evidence that there is no dispute about the Korfa tenancy of Rajani and Akrur and the auction purchase by Kali Prasanna in rent execution case.
7. Similarly it has been admitted by the plaintiff that the delivery of possession was taken through Court on 4-2-33 and the Korfa right of Rajani and Akrur was annulled. It is contended that although the Kabuliyat Exh. 5 dated 9-5-34 was executed by the defendant 1 alone yet it was in the interest of the defendant No, 1 and his brothers. The contesting defendant No, 6 asserted that this property was the absolute propery of Priyanath.
8. P. W. 1, the plaintiff, in his evidence stated :- "My father died in Jaista/Asar 1339 B. S. I am in inimical terms with Priyanath since 1350 B. S."
9. It appears that the defendant No, 1 and the plaintiff mortgaged the suit land on 19-5-34 as per Exh.
10. 1 and in his evidence P. W. 1 stated t "It was redeemed after 5 years on payment of the proportionate money to the mortgagee. I did not pay anything. I was not present when and bow Priyanath procured it and paid to the Mahajans.
11. The Khaikhalashi was handed over to me by my brother. I told of it to my pleader but I could not produce it at the time of the plaint."
12. So this goes to show that the plaintiff and the defendant No, 1 were not at all in inimical terms rather they were very cordial with each other. Defendants 5 and 6 are close neighbours of the plaintiff and P. W. 1 stated in his evidence.
13. "I left my paternal bhili 6 years ago and shifted elsewhere on the homestead of Gopal which I purchased."
14. So before that he was in his own homestead and since defendants 5 and 6 are close neighbours, it was expected of him to know as to who were possessing the suit land. The purchase made by defendants 5 and 6 was in 1952 B S. yet the present suit was filed as a simple partition suit. But even then it is evident that the homestead was not brought into hotchpotch. Defendants 5 and 6 have been made parties as purchasers from defendant No,
1. The partition suit having been brought on the basis of the ancestral property claiming jointness by the plaintiff even after the sale of their specific share in ancestral property followed by settlement of the same by defendant No, 1 alone alleging that the plaintiff and defendants Nos, 1 to 4 were all through joint in their ancestral property and that the acquisition although made by defendant No, 1 alone yet it was for himself as well as for his brothers, the present suit for partition without including the homestead is not maintainable.
15. Defendant No, 6 pleaded protection on the principle of section 41 of the Transfer of Property Act as he acted in good faith after taking reasonable care to ascertain that the transferor had power to make the transfer. So when the plaintiff filed the suit for relief it was incumbent on him to establish that he had no knowledge of or complicity in the transfer made by the defendant No, 1 and as such he was not barred from asserting his right although defendant No, 1 alone made a transfer of the suit land in favour of defendants 5 and 6. The plaintiff claimed jointness of the property and as discussed above we find that the plaintiff was on good terms with defendant No, 1 and there was no reason why he should not know about the transfer made by defendant No, 1 in favour of defendants 5 and 6 in 1945.
16. It appears that some rent suits were filed against defendant No, 1 alone by the landlord and this plaintiff never raised his voice. It may by assumed that his possession was not disturbed so he was silent. The defendant No, 1 alone could be sued for the rent due on the basis of the Kabuliyat but the plaintiff ought to be diligent to protect his right. But when the landlord filed a suit against defendant No, 1 making defendants 5 and 6 as party as will appear from Exhs. E and E (1), the silence on the part of the plaintiff goes to show that he acquiesced it and in that view of the matter the plaintiff cannot now turn round and claim the suit land denying the right, title and interest of the defendants 5 and 6. In our view the conduct of the plaintiff does not justify that he should get any relief in the present suit without filing a properly constituted title suit, if he at all intends to get rid of the kabala executed by the defendant No, 1 in favour of defendants 5 and 6. The Khatians Exhs. 6 and 6(a) go to show that the plaintiff had a protected interest. But when it is found that the auction-purchaser took symbolical possession through Court, could not get actual possession of the suit land and the defendant No, 1 took settlement without paying any premium, but only by raising the annual rent, then in our view the interest of the widow of Akrur remained unaffected and in that view of the matter the learned Additional District Judge was right in holding that the suit was bad for defect of parties as the widow of Akrur was not made a party in this partition suit. The protections sought for by defendant No, 6 invoking the aid of section 41 of the Transfer of Property Act seems to us well founded when on analysis of the facts as discussed earlier we find that the plaintiff failed to prove his bona fide inasmuch as he could not show that there were circumstances which precluded him from knowing the transfer by defendant No, 1 in favour of defendants 5 and 6 as early as in 1945. It is no doubt true that the defendant No, 6 should have made enquiries before he could go in for such a transaction. But from the facts it appears that defendant No, 1 by his conduct as well as by the deed of settlement impressed upon the defendants 5 and 6 that he alone was the owner and on that basis defendants 5 and 6 purchased the property and remained in possession of the same since then.
17. P. W. 1, the plaintiff although in his corss-examination stated that the defendants 5 and 6 have been possessing this land for about 8/10 years. It does not appear to us to be correct, since no evidence has been adduced to show as to when defendants 5 and 6 entered into possession.
18. Besides we find the plaintiff and defendants 5 and 6 are close neighbours. Defendants 5 and 6 purchased the land in 1945. So the presumption should be that they entered into possession just after the purchase and it was not the duty of the plaintiff to rebut it by asserting that although the purchase was in 1945 yet the defendants could not enter into possession. The above assertion while deposing in 1962 that they possessed for some 8 or 10 years cannot rebut the presumption of possession by defendants from 1945.
19. D. W. 1, defendant No, 6 stated:-- "We looked into his papers and were satisfied by the kabuliyat and the rent receipts shown to us.
20. Priyanath took settlement from Kali Prasamma. He was then separate from his brothers . . . . D. W. 6 leased out 4 bighas out of it to defendent 7, Amena Khatun. The rest is in our possession since 1352 B. S. None also possessed it."
21. And he further stated that two rent suits were brought against him vide Exhs. E and E(1). So, all these go to show that defendants 5 and 6 came into possession of the suit land after the purchase and made mutation of their names in the landlord Sharista and no objection was raised by the plaintiff at any point of time. The plaintiff, if he had been deceived by the action of the defendant No, 1 he can be compensated from the remaining ancestral properties out of the share of defendant No,
1. It appears to us that the plaintiff filed this suit in order to defeat the claim of defendants 5 and 6. Be that as it may the plaintiff, in our view, cannot succeed in the present case and the right, title and interest of defendants 5 and 6 are protected by the principle of section 41 of the Transfer of Propery Act.
22. In the result, the appeal is dismissed with costs. The judgment and decree of the lower appellate Court are affirmed. But in our view the observation of the learned Additional District Judge. "As it is not a regular title suit my observations about the qualities and characters of Ext. 5 Kabuliyat, Exh. C kabala and adverse possession will not be binding or res judicata" is not at all warranted in the facts and circumstances of the case.
23. T. H. KHAN, J.--I agree.