Chandra Mohan Dutta and Others vs Sasi Bala Dasi and Others

Coutts, J.—This is an appeal from the decision of a Judge of this Court sitting alone in second appeal. The suit was brought by two ladies--Srimati Sasibala Dasi and Srimati Nistarini Dasi--for recovery of khas possession of the whole of certain properties mentioned in Schedules ka and ga of the plaint and for possession of half the property mentioned in Schedule kha of the plaint, by ejectment of defendant No. 1 who was in wrongful possession. There was also a claim for mesne profits and costs.

The land is in Mouza Ranguni and it appears that 2 annas of that Mouza belonged originally to one Srishtidhar Dutta, the husband of plaintiff No. 1, Srimati Sasibala Dasi, Srishtidhar had two brothers, the father of Chandramohan Dutta, who is defendant No. 1, and Prasanna Kumar Dutta, who is now dead and whose widow Srimati Sumitra Dasi is the second defendant. After the death of her husband, plaintiff No. 1 was dispossessed of her husband''s property and in 1902 she instituted a suit for recovery of khas possession after partition by metes and bounds. This suit was compromised. By the terms of the compromise the property claimed by the plaintiff was divided into the three portions which are described in Schedules ka, kha and ga of the present plaint; the plaintiff''s title was admitted, but it was agreed that she should get khas possession of the property mentioned in Schedule ka only. Her mother-in-law Sunayana Dasi and the defendant No. 2 in the present suit, the widow of Prasanna Kumar Dutta, were to hold possession of the lands described in Schedule kha for life as maintenance and the plaintiff No. 1 and her mother-in-law Sunayana Dasi were to have joint possession of the ga Schedule property.

Subsequently to the compromise decree Sunayana, the mother-in-law of the plaintiff No. 1, died and the case of the plaintiff No. 1 is that she came into possession of the whole of the lands in Schedule ga and half the lands in Schedule kha. A rent-suit was then instituted by the landlords against her in respect of a portion of the property. They obtained a decree and took out execution and a proclamation for sale issued in respect of the whole of the 2 annas. Thereupon the defendant No. 1, who, as I have said, is the nephew of the plaintiff No. 1''s husband, in order to protest whatever rights he might have, deposited the decretal amount, namely, Rs. 37, He then filed an application u/s 6, Regulation XX of 1819: he was put in possession and was in possession of the property for the years 1322 and 1323. Meanwhile, however, the plaintiff No. 1 had leased a portion of the property to her mother, the plaintiff No. 2 and in 1323 when the latter tried to take the produce of the lands, she was prevented from doing so by the defendant No. 1. A criminal case was brought by the plaintiff No. 2, which failed on the ground that the question was in the nature of a civil dispute, and the defendant No. 1 remained in possession. The plaintiff NO. 1 accordingly brought this suit for recovery of possession and ejectment on the ground that the amount deposited by the defendant No. 1 has been fully realized and that the plaintiffs are, therefore, entitled to recover possession.

The only part of the property with which we are concerned in this appeal is the half share of the Schedule kha lands claimed by the plaintiff. In regard to this the defendants'' contention is that under the compromise the plaintiff is not entitled to a half share on the death of Sunayana and further that she has not been holding possession of this property as statutory mortgagee as alleged by the plaintiff but that the defendant No. 1 has been holding the lands tinder the defendant No. 2 by virtue of a settlement from long before the year 1322,

The suit was decreed in the Court of first instance, but so far as half the kha lands were concerned, on appeal to the District Judge the suit was dismissed. On second appeal to this Court half the kha lands were decreed to the plaintiff and it is against this decision that the defendant No. 1 has filed this appeal.

In the appeal before the learned Judge of this Court the first contention was that by the terms of the compromise the plaintiff was, on the death of Sunayana, entitled to possession of half the kha lands. This was the main ground of the appeal and it was successfully urged, but it was further urged and held by the learned Judge of this Court that the plaintiff No. 1 having actually got possession of half the kha lands and the defendant No. 1 not having a better title than the plaintiff and the Rs. 37 which he deposited in Court having been paid off, the plaintiff was entitled to succeed.

Now with regard to the first of these points. The relevant portion of the compromise decree runs as follows: "Defendant No. 2 Srimati Sunayana Dasi and the widow of late Prasanna Kumar Dutta will take into possession the lands of Schedule Kha for maintenance for life. The defendants Nos. 1 and 3 will have no objection to this. After the death of both of them the plaintiff will take possession of the lands, to which defendants NOS. 1 and 3 will have no objection." It appears to me that there can be no doubt as to the construction of this term of the compromise. It is clearly a grant of this land to the two ladies for life as maintenance, that is to say, they are joint tenants of the property and even on the first sentence of this portion of the compromise alone I would be prepared to hold that the plaintiff was not entitled to recover possession until the death of both the ladies. But if there were any doubt, that doubt is set at rest by the last sentence: "After the death of both of them the plaintiff will take possession of the lands." This is a clear statement that it is only after the death of both ladies that the plaintiff will get possession and, in my view, there can be no possible ambiguity. This was the view which was taken by the learned Subordinate Judge in first appeal and, in my opinion, there can be no doubt on the point.

I now come to the next point, namely, that the plaintiff having actually come into possession of half the kha lands on the death of Sunayana and the defendant No. 1 not having been able to show a better title than the plaintiff and the amount which the defendants deposited having been recovered, the plaintiff is entitled to succeed. If the facts were correct the conclusion would also be correct, but there appears to have been some misapprehension as to the facts in the mind of the learned Judge of this Court, To establish the fact of the plaintiff''s actual possession after the death of Sunayana, he has relied on the pleadings and he says that the allegation of the plaintiff''s possession was distinctly made in the plaint and was not controverted in the written statement. This, however, is hardly correct, for in his written statement the defendant has distinctly stated that the defendant No. 1 does not hold possession as a statutory mortgagee but that the plaintiff No. 1 is in possession by virtue of a settlement from defendant No. 2 This is clearly a denial of the plaintiff''s possession in her own right and there is no finding of any of the Courts on the point. The fact is that this point was a new one taken for the first time in appeal to this Court and there was no evidence on the record and no finding to support it. In these circumstances it cannot be assumed that the plaintiff was in possession except by virtue of a settlement from defendant No. 2 and this being so, the contention fails.

For the reasons I have given I would decree this appeal with costs.

Miller, C.J.

I agree.