Chakravarti, J.:— These are two appeals by the plaintiff who brought two suits for rent for two holdings against different defendants. Both the suits were, by consent of parties, tried together by the Court below and governed by one and the same judgment.
2. The facts shortly stated are these.
3. The plaintiff alleged that one Jadav granted a darputni of 4 annas share to the year 1315. On the death of Jadav, his son granted to the plaintiff as darputni of a remaining 12 annas by a potta dated the 24th Falgoon 1324. It is further alleged that the defendant Jaharuddin Mondal and another, defendants in one of the suits, executed a kabuliyat in favour of the plaintiff acknowledging the plaintiff to be the landlord of the 16 annas. The defendants in both the suits have, since the plaintiff became the owner of the 16 annas of the property, paid him rent. It appears that one Ananda Chaki brought a 4 annas share of the putni to sale as having belonged to one Mohi Pal and that the plaintiff in order to safeguard his interest took a cove rance of that 4 annas share from the son of Ananda Chaki. The defendants, so far as Suit No. 97 is concerned, pleaded that the plaintiff had not 16 annas of the putni and that the kabuliyat executed by them was taken by fraud and that it was executed in ignorance of the true facts stated as to the putni. Then in the other suit the defendants pleaded non-liability to the plaintiff.
4. Both the Courts below have given a decree to the plaintiff for 8 annas share of rent, but dismissed the suit with reference, to the other 8 annas share. It was argued in second appeal by the plaintiff that some of the defendants having executed a kubuliyat, in favour of the plaintiff for the 16 annas share, and having, paid him rent after, the execution of the kabuliyat, and that the defendants in the other suit having also attorned to the plaintiff and having admitted title to the 16 annas of the property, they were estopped from questioning the title of the plaintiff.
5. It was also argued, on behalf of the plaintiff-appellant that, assuming that the defendants were entitled to raise the question as to the plaintiff's title, the onus was upon them to show that the plaintiff had not the 16 annas of the title in himself. It appears that both the Courts below took the view that the onus was upon the defendants to show that the plaintiff: had not the 16 annas of the title. The lower appellate Court, after finding that, Jadav had 8 annas share, took up the question as to the plaintiff's title to the other 8 annas share.
6. The plaintiff's case as regards the 4 annas share which originally belonged to one Krishna Kinkar was that Jadav had acquired a title by adverse possession against the defendants. Evidence was adduced on both sides and the lower appellate Court came to the conclusion that the plaintiff had failed to prove that Jadav acquired a title by adverse possession as against the defendants. It appears, therefore, that so far as this 4 annas share is concerned, the finding being upon the evidence adduced by both parties, a question of fact, it cannot be challenged in second appeal. Therefore, so far as this 4 annas share is concerned, want of title in the plaintiff has been established. As regards the other 4 annas. There, which belonged to Mohipal, it appears, upon the facts proved in the case that Mohipal was a member of the Mitakshara family. He dealt with the whole 16 annas of the property by way of mortgage and that the mortgages, after enforcing the mortgage by a suit brought the property to sale and purchased it himself, and the son of the purchaser has sold the property to the plaintiff. Therefore, so far as this share is concerned, the plaintiff has established his title.
7. The lower appellate Court dismissed the plaintiff's claim as regards this 4 annas share in the view that as Mohipal was one of the members of a Mitakshara family it was difficult is this case to ascertain what right he had in the property; and the plaintiff cannot succeed in the suit. We think the learned Subordinate Judge is in error here. The onus, we must remember, is upon the defendants to show that there was a want of title in the plaintiff. In certain circumstances one of the members of a Mitakshara family can make valid transfer and it cannot be said that in no conceivable circumstances it is possible. Moreover for ought we know Mohipal might have acquired a title to it as a co-sharer by partition or otherwise.
8. Therefore, it appears to us that the defendants have failed to show that the plaintiff had no title to this 4 annas share which he bought from the son of Ananda. We cannot shut our eyes to the fact that, as a matter of fact, the defendants do not say that any of the other alleged co-sharers of Mohipal had claimed any rent from them or had realized any rent from them, and it appears that the claim for rent of the period in suit would be now hopelessly barred. Therefore, we think that, so far as his share is concerned; the defendants ought to pay rent to the plaintiff on the ground that they had admitted his title by attorning to him as regards his share.
9. It is unnecessary to discuss the question as to whether the onus was rightly placed upon the defendants by the Courts below. It cannot be doubted that when either through ignorance of title of the plaintiff, or by fraud in the matter of execution of the kabuliyat, the tenants attorned to the plaintiff, then according to the authorities of this Court, the defendants are not altogether estopped, but can show that the plaintiff had no title either when the kubuliyat was executed or attornment was made by payment of rent. But it is shown in this case that the defendants were not placed in possession of the lands at the time either when the kabuliyat was executed of the defendants attorned. In the present case the defendants were already in possession of the holding.
10. In the view that we have expressed of the questions raised in this appeal it appears, to us that the plaintiff is entitled to a decree to the extent of 12 annas share and the decrees of the Court below are varied to that extents. The plaintiff's suit as regards the 4 annas share fails and is dismissed. In the circumstances wo make no order as to costs.
Cuming, J.:— I agree.
11. Decree varied.