1. This appeal arises out of a suit for declaration of the plaintiff's title to and recovery of khas possession of certain plots of land comprised in the homestead of the defendants and for ijmali possession of certain other plots. There was a farther prayer for demolition of some buildings standing on those plots.
2. The main defence was that the defendants Nos. 3 to 6 who are the co sharers of the plaintiffs had granted a lease in respect of their share to defendants Nos. 1 and 2 and that they bad been in possession of them as tenants on payment of rent.
3. The Court of first instance found that the plaintiffs were benamdars of one Kali Gopal, defendant No. 7 in the suit, and upon the evidence the learned Munsif held that the defendants had right to hold the land as tenants and dismissed the suit. On appeal the learned District Judge modified the decree of the Court of first instance.
4. The defendants Nos. 1 and 2 have preferred this appeal and the plaintiffs have preferred cross objections.
5. So far as the question whether the defendants held the land under settlement from the defendants Nos. 3 to 6 is concerned, the learned District Judge has practically come to the finding that there was no settlement. But in arriving at the finding ha has committed several errors. He says: ''The lease requires to be proved. There is no document evidencing settlement, nor in fact any evidence of settlement at all. All we have are two rent receipts which have not been properly proved.'
6. Now, in the first place, the two rent-receipts which are said by the learned Judge not to have been properly proved were admitted in evidence without objection in the Court of first instance. No objection could, therefore, be taken in the Appellate Court that they were not properly proved.
7. Then it cannot be said that there was no document as evidence of the settlement. As pointed out by the learned Munsif there are two receipts in respect of the two jamas granted by the defendants Nos. 3 to 6, which recite that the lands had been settled with the defendants Nos. 1 and 2 by them.
8. Then there was a rent suit brought by defendants Nos. 5 and 6 against the defendants Nos. 1 and 2 which was decreed on compromise and that decree was passed upon the footing that the former held the land under the latter.
9. Lastly, there is the evidence of the Pleader, Babu Tarapada Basu, and upon whose evidence evidently the learned Munsif placed much reliance.
10. With regard to the jama of annas 4, there are, in addition to the evidence referred to above, certain decrees obtained by Kali Gopal, defendant No. 7, in certain title suits in which he sought to rescver khas possession of the lands. The claim for khas possession was disallowed, and a decree for rent was given.
11. The learned Judge, referring to the rent-decree obtained by defendants Nos. 5 and 6, says that it was obtained shortly before the purchase by the plaintiff. Further on he says: 'It appears that the brothers having left the land and besoming more and more involved in pecuniary difficulties, the dispute about the land having already begun to be agitated in consequence of the part purchase by the uncle of the present plaintiff defendants Nos. 3 to 6 may have been persuaded by the defendants Nos. 1 and 2 to bring this rent-suit in order to evidence a settlement that was never in fact made' 'Evidently, the learned Judge in this passage suggests that the suit was a collusive one. The learned Pleader for the appellant points out that this decree was obtained on the 7th March 1911 before the purchase by the plaintiffs themselves which was on the 19th December 1911. As to the part purchaser referred to by the learned Judge, there is no doubt that the defendant No. 7 purchased the share of Chunilal, defendant No. 4, in 1908 and that the suits referred to were with respect to this 4-annas share. The finding arrived at by the learned Judge upon this part of the case would have been eon elusive in second appeal were it not for the errors he has fallen into as pointed out above. In these circumstances, the question ought to be sent bask for the decision of the lower Appellate Court.
12. It is contended by the learned Pleader for the respondents that the question of re judicata based upon the decree obtained in the suits brought by Kali Gopal with respect to the 4-annas jama was not raised in the Courts below.
13. It does not appear that it was specifically raised but the learned Munsif refers to those suits and the fact that Kali Gopal lost them. We think that the question should be gone into by the lower Appellate Court.
14. Another question has been raised by the leaned Pleader for the respondent, viz, that there could be no valid lease in respect of the homestead lands which are governed by the Transfer of Properly Act and that no valid title could be acquired by the defendants if there was no registered document. This question does not appear to have been raised in the Courts below and it is stated by the learned Pleader for the appellant that the rent-suit brought in 1911 against the defendants Nos. 1 and 2 purported to be a suit under Section 148A of the Bengal Tenancy Act. The learned Pleader for the respondents says that it might have been so described, as it was a collusive suit. We think, therefore, that the learned Judge should also decide the question whether the incidents of the tenancy, (if any) were governed by the Bengal Tenancy Act or by the Transfer of Property Act and whether the settlement set up by the defendants Nos. 1 and 2 was valid according to law.
15. The courtyard plots are common courtyard and should go to the persons to whom the main building will belong. That is what the learned Judge says and we think he is right.
16. It is contended by the learned Pleader for the appellant that there ought not to have been a decree for Khas possession in respect of the plots which were admitted by the plaintiffs to be in the exclusive possession of the defendants Nos. 1 and 2 or in the ijmali possession of the parties.
17. So far as the plots which might have been admitted to be in the exclusive possession of the defendants are concerned, there could not be any decree for khas possession with regard to the lands which were alleged d to be in the joint possession of the plaintiffs and the defendants, the former claimed possession of some of the plots of land, or, in the alternative, that lands equal in extent to such plots given to them. The plaintiffs, therefore, did not ask for demolition of buildings in respect of such plots and we do not see why, in these circumstances, the Court should have given a decree for demolition of buildings. So for as plot is concerned the result is that the ease is sent back to the lower Appellate Court in order that it may come to definite findings upon the question indicated above and dispose of the Case according to law. Costs will abide the result.
18. With regard to the cross objection, it is contended that the case should go back with respect to the plots included in the cross objection. The main ground urged is that the onus had been wrongly thrown upon the plaintiff to show that the mother of the defendants Nos. 3 to 6 was not the real owner of the lease hold interst.
19. The question has been fully gone into by the Court of first instance and the learned District Judge has affirmed its findings. We do not see sufficient reason for interfering with that portion of the judgment.
20. The cross objection is disallowed.