1. This is an appeal arising out of a suit for khas possession brought by Sheikh Badan against the defendants, Edon Molla, Madan Molla, Mobarek Molla and Naban Molla. The question before the Court is whether the plaintiff or the defendants have the better title to the lands in suit. It is admitted that the proprietor of the land was one Sridhar Chatterjee. It is proved that in 1906 Sridhar Chatterjee gave a Miras lease to Sarat Kumar Mazumdar and Sasi Kumar Mazumdar. The defendants, in their written statement, pleaded that the Mazumdars were merely benamdars of Sridhar Chatterjee, but no issue was raised upon that point nor has it been decided by the lower Appellate Court. The Munsif found that there was not sufficient proof of benami. On 3rd Bysakh 1315 defendant No. 1 executed a kabuliyat in favour of Sarat Kumar Mazumdar for the lands in suit. On 22nd Bhadra 1315 one Kader executed a kabuliyat (Exhibit 3) in favour of Sarat Kumar Mazumdar and Sasi Kumar Mazumdar for certain other lands. On 10th Aghran 1315 Sheikh Badan the plaintiff executed a kabuliyat in favour of Sarat Kumar Mazumdar and Sasi Kumar Mazumdar for the lands in suit. It will thus be seen that the defendant's kabuliyat is the first in point of date. It has been found by the learned District Judge--and as to this there is no dispute--that formerly Edon was in possession of the lands in suit as sublessee, Kadir being in possession of certain other lands. There was a suit in ejectment by Sridhar Chatterjee in which he got a decree against both these men, the case having been carried up to this Court. In September 1907 he held the decree with Rs. 300 for costs and interest thereon but had up to that time failed to eject his judgment-debtors. There was some talk of settlement and it has been found that in September 1907 Sridhar Chatterjee, on a promise to settle the lands with Edon Molla and Kadir, obtained payment from each of those of Rs. 160 making up the amount of costs due to him. It is found that he did nothing further towards making settlement with those persons and particularly with Edon Molla with whom we are now concerned. In the following year Edon executed the kabuliyat (Exhibit A) and had it registered on 23rd July 1908. It is found as a fact that neither Sridhar nor Sarat nor Sasi ever sanctioned that kabuliyat or accepted it either before or after registration. The question then arises--Have the defendants any title to the lands in suit?
2. This appeal first came on for hearing before Mr. Justice Fletcher and Mr. Justice Shamsul Huda on 30th January 1918 See 45 Ind. Cas. 49 - Ed. The plaintiff-respondent was absent and the appeal was decreed ex parte, the Court holding that though Sridhar Chatterjee might not have accepted the kabuliyat (Exhibit A), still there was a tenancy created in favour of Edon Molla by the verbal arrangement of September 1907 and the payment of Rs. 150. That judgment and the decree based upon it were set aside on an application by the plaintiff-respondent and the appeal has now been heard before us in the presence of both the parties.
3. It now appears that Sridhar Chatterjee had no right to make any settlement with Edon Molla in September 1907. He was the proprietor of the land but had granted a lease of it (for what purpose it does not appear) to the Mazumdars. If he had no right to make the settlement, it follows that the defendants' case must fail. The defendants relied upon Exhibit A as their document of title. They did not plead that there was a verbal settlement from Sridhar Chatterjee, and it appears from the judgment of the learned Additional District Judge that it was only put forward in argument before him in reply. If Sridhar had no right to make this settlement, it is a matter of no importance what he said or did. The defendants must necessarily fall back upon their document of title. Exhibit A, as to which there is a clear finding that it was not a document which was accepted either by Sridhar Chatterjee who, on the facts found, would have no right to accept it or by the Mazumdars who were the Mirasdars lessees and who would be the people to accept it if it was to be accepted.
4. In these circumstances it is clear that the decisions of the Courts below are correct. The appeal is accordingly dismissed. Under the circumstances, and having regard to the remarks made by the learned District Judge as to the conduct of Sridhar and the plaintiff, we make no order as to costs.