S.A. No. 2096 of 1919.
1. This appeal, preferred by defendants Nos. 3 and 4, arises out of a suit for declaration of title and for khas possession.
2. The plaintiffs bold a Jama in Mouza Khasmaram under defendant No. 5 and they sued defendant No. 3 for rent of the two parcels of land in dispute on the footing that they formed part of their Jama in Mouza Khasmaram. The defendant No. 3, Sarbeshwar Bez Madak, denied the plaintiffs' title and pleaded that the lands were situated in another Mauza. Mouza Deulpur, and that they were held by his son Sarat under the defendants Nos. 1 and 2. The plaintiffs thereupon did not proceed with their rent suit, and it was dismissed. Then they brought the present suit. Sarbeshwar and Sarat again put forward the plea which they had taken in the rent suit. The first Court found against them, holding that tbe two parcels of land are in Khasmaram and not in Deulpur, and that they do form part of the Jama held by the plaintiffs under defendant No. 5. The suit was accordingly decreed.
3. Sarbeshwar and Sarat then preferred an appeal, and the points pressed upon the learned Subordinate Judge were that the plaintiffs were only benamidars for their husbands and not entitled to maintain the suit, and that they had no title to the parcels of land. These points were again decided against the defendants, and the appeal was dismissed.
4. With all the facts found against them, the defendants in second appeal take a new line of argument, and urge that by their denial of the plaintiffs' title in the rent suit they did not incur forfeiture.
5. There was some discussion as to whether the case was to be regarded as governed by the Tenancy Act or by the Transfer of Property Act. On this point there are two answers. The first is that the Munsif's expression of opinion that the latter Act was applicable does not seem to have been challenged in the lower Court of Appeal. The second is that whichever Act is applicable, the defendants must first accept the position of lessees, before claiming the protection extended to lessees. The defendants chose to fight the case in both the lower Courts on the footing that the plaintiffs had no title whatever, and the findings are not merely that the plaintiffs have title, but further that the defendants, to bolster up a plea which they knew to be false, made use of a collusive kabuliyat, and of spurious collection papers, fabricated for the purpose of the suit, In these circumstances the principle laid down in the case of Sutyabhama Dasi v. Krishna Chander Chatterjee 6 C. 55 : 6 C.L.R. 375 should be applied, It is true that that case was decided before the passing of the Transfer of Property Act, but the proviso to Section 111(g) does not affect the principle. Just as in that case, the defendants seek to change the whole nature of their defence at the last moment, and to set up in this Court a plea which they directly and fraudulently repudiated in the lower Courts.
6. On this ground I affirm the judgment of the learned Subordinate Judge and dismiss the appeal with costs.
7. This judgment governs Second Appeal No. 365 of 1919 also.