1. The predecessors of the plaintiff and their co-owners had a certain taluk in which lay 13 cottahs of land which formed the subject-matter of the suit. In April 1910 two of these co-owners, namely, one Ramdas and one Radha Charan who claimed to have been in exclusive possession of the said 13 cottahs of land granted an ordinary kasra lease without any term fixed in respect of the said lands to one Umesh Pandit. In December 1910 Umesh Pandit sold his lease-hold interest to defendant 4. In 1911 a partition suit was commenced between the plaintiff's predecessors and their co-sharers. During the pendency of this suit Ramdas and Radha Charan sold their taluki right to defendant's Nos. 1 to 3. In 1913 the partition suit terminated in a final decree and under the said decree the then co-owners were put in possession of their respective allotments. In 1921 the plaintiff acquired his interest in the allotment which fell to his predecessors. The present suit was thereupon commenced by the plaintiff for a declaration of his taluki right to the lands and for recovery of khas possession thereof. The suit was decreed in part by the learned jxiunsif who declared the plaintiff's taluki right to the lands but disallowed ibis prayer for khas possession. There was an appeal as well as a cross-appeal preferred before the lower appellate Court and the result thereof was that the plaintiff's claim for khas possession was allowed by the learned Subordinate Judge. Against this decision the present appeal has been preferred by defendant No. 4.
2. Some general arguments have been advanced before us on behalf of the appellant as regards the unsatisfactory character of the judgment of the learned Subordinate Judge. It has been pointed out that the learned Judge's judgment shows that he made no distinction whatsoever between legal proof and suspicion. These arguments are not without foundation but if we could hold that the specific findings of fact at which the learned Subordinate Judge has arrived an the case are not open to challenge we would not have felt inclined to interfere with his judgment on these general arguments. We propose to deal with the errors of law which, in our opinion, appear in the judgment of the learned Subordinate Judge. But before we do so it would perhaps be convenient to refer to what has been urged on behalf of the respondents as a general answer to the criticizms that have been advanced on behalf of the appellant in this appeal. It has been urged by the learned vakil who appears for the respondents that even assuming that the appellant has succeeded in establishing all her contentions she has no right to remain on the lands in view of the decision of the Full Bench of this Court in Niranjan Mukherjee v. Soudamini Dasi A.I.R. 1926 Cal. 714.
3. In that case it has been authoritatively laid down that a person to whom a parcel of land has been allotted by a decree for partition of a civil Court does not take it subject to a permanent lease granted by his former co-owners without his concurrence when the land was the joint property of all the co-sharers. This argument no doubt is sound but for the practical application of the principle to which reference has thus been made there are obviously some difficulties. In the first place it has not been found in the case, though there are some materials which may go to support such a finding, that in point of fact the lands covered by the lease on which defendant 4, relies were homestead lands and indeed the question as to the character of this lease does not appear to have been gone into in the present case. Without a finding on that question it cannot be said that the decision on which the respondents rely applies to the case. Furthermore, from the concluding words of the judgment of the acting Chief Justice in that case which are to be found at p. 343 of the report it would appear that there may be equitable considerations which may in certain circumstances protect a lessee of this sort. That being our opinion so far as this contention of the respondents is concerned, it becomes necessary to examine the judgment of the learned Subordinate Judge in the light of the other criticizms that have been advanced on behalf of the appellant. Leaving aside the technical defects that are noticeable in that judgment, in our opinion there are three points on which it may with reason be said that the judgment cannot be supported. In the first place the learned Subordinate Judge in dealing with the document Ex. A, which is the lease granted by Ramdas and Radha Charan to Umesh Pandit, says that there is no evidence that any consideration passed in respect of it. This statement is evidently wrong for in point of fact besides the recitals of the consideration that are to be found in the document itself there is the evidence of at least one witness, namely, witness 2, on behalf of the defendant. Whether that evidence is worth accepting or not is not a matter for us to consider. But it certainly is not right to say that there is no evidence in support of the case as to passing of consideration in respect of the lease. The next thing that we find is that a very important piece of evidence on which reliance was placed on behalf of the appellant and which was also relied upon by the learned Munsif in the judgment that he passed, has not at all been referred to by the learned Subordinate Judge. That piece of evidence is the document Ex. 4 which is the butwara chitta of the taluk in question. In it we are told it is mentioned as against these 13 cottahs of land that defendant 4 holds a jote in respect of them. It is a document which was filed on behalf of the plaintiff and if the defendants relied upon an entry contained in that document which in their view supported their case it was certainly a piece of evidence which should have been specifically dealt with by the learned Subordinate Judge. Whether the statement contained in this document is worth much or not is' a matter for the final Court of fact to determine and not for us to consider in the present appeal. Nextly, the learned Subordinate Judge speaking of the settlement. record, has expressed the view that, as the settlement record is impeached by both sides it has got no evidentiary value of its own. The matter so far as the settlement record is concerned stands in this way : The settlement record shows that there is a jote in respect of these 13 cottahs of land in the name of Abid and others, that is to say, of defendants 1 to 3. The plaintiff challenges the correctness of this entry and says that there is no jote. The defendants, on the other hand, contend that there is a jote but that the entry is wrong only so far as it purports to show that the jote was held by defendants 1 to 3 and not by the defendant 4. They seek to explain the entry by suggesting that defendant 4 being a woman the jote was actually possessed and the cultivation in respect of it was made by her husband, defendant 1. Whether this explanation is reasonable or not is a question which has got to be determined by the learned Subordinate Judge. It is enough for us to say that it is not-right to leave this document entirely out of consideration by saying that it is of no evidentiary value. All that can, be said is that in view of the circumstances to which we have referred the presumption of correctness which attaches to such an entry does not arise. These defects and errors are, in our opinion, sufficient to vitiate the findings of the learned Subordinate Judge.
4. We accordingly allow the appeal, set aside the judgment appealed from and send the case back to the Court of the learned Subordinate Judge, so that the appeal may be re-heard in the light of the observations made above and then disposed of in accordance with law. Costs of this appeal will abide the result.