P.B. Chakravartti, J.

1. These are two appeals by the plaintiff who brought twosuits for rent for two holdings against different defendants. Both the suitswere, by consent of parties, tried together by the Court below and governed byone and the same judgment. The facts shortly stated are these. The plaintiffalleged that one Jadav granted adarputni of 4 annas share in the year 1315. Onthe death of Jadav, his son granted to the plaintiff a darputni of theremaining 12 annas by a potta dated the 24th Falgoon 1321. It is further allegedthat the defendant Jaharuddin Mondal and another defendants in one of the suitsexecuted a kabutiyat in favour of the plaintiff acknowledging the plaintiff tohe the landlord of the 16 annas. The defendants in both the suits have, sincethe plaintiff became the owner of the 16 annas of the property, paid him rent.It appears that one Ananda Ohaki brought a 4-annas share of the putni to saleas having belonged to one Mohi Pal and that the plaintiff in order to safeguardhis interest took a conveyance of that 4 annas share from the son of AnandaChaki. The defendants so far as Suit No. 97 is concerned pleaded that theplaintiff had not 16 annas of the putni and that the kabuliyat executed by themwas taken by fraud and that it was executed in ignorance of the true factsstated as to the putni. Then in the other suit the defendants pleadednon-liability to the plaintiff.

2. Both the Courts below have given a decree to theplaintiff for 8-annas share of rent, but dismissed the suit with reference tothe other 8-annas share. It was argued in second appeal by the plaintiff thatsome of the defendants having executed a kabuliyat in favour of the plaintifffor the 16 annas share and having paid him rent after the execution of thekabuliyat and that the, defendants in the other suit having also attorned tothe plaintiff, and haying admitted title to the 16-annas of the property, theywere estopped from questioning the title of the plaintiff.

3. If was also argued on behalf, of the plaintiff-appellantthat assuming that, the defendants were entitled to raise the question as tothe plaintiffs title; the onus was upon them to show that the plaintiff hadnot the 16-annas of the title in himself. It appears that both the Courts belowtook the view that the onus was upon the defendants to show that the plaintiffhad not the 16 annas of the title. The, lower Appellate Court after findingthat Jadav had 8-annas share took up the question as to the plaintiffs titleto the other 8 annas share.

4. The plaintiffs case as regards the, 4 annas share whichoriginally belonged to one Krishna Kinkar was that Jadav had, acquired a titleby adverse possession, against the defendants. Evidence was adduced on bothsides and the lower Appellate Court came to the conclusion, that the plaintiffhad failed to prove that Jadav acquired a title by adverse possession asagainst the defendants. It appears therefore that so far as these 4-annas shareis concerned the finding being, upon the evidence adduced by both parties, aquestion of fact it Cannot be challenged in second appeal. Therefore, so, faras these 4 annas share is concerned, want of title in the plaintiff has beenestablished.

5. As regards the other 4-annas share which belonged toMohipal, it appears upon the facts proved in the case that Mohipal was a memberof the Mitakshara family. He dealt with the whole 16 annas of the property byway of mortgage and that the mortgagee after enforcing the mortgage by a suitbrought the property to sale and purchased it himself, and the son of thepurchaser has sold the property to the plaintiff. Therefore, so far as thisshare is concerned the plaintiff has established his title. The lower AppellateCourt dismissed the plaintiffs claim, as regards this 4 annas share in theview that as Mohipal was one of the members of a Mitakshara family it wasdifficult in 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 isin error here. The onus we must remember is upon the defendants to show that Hiore was a want of title in the plaintiff, in certain circumstances one of themembers of a Mitakshara family can make a valid transfer and it cannot be saidthat iii no conceivable circumstances it is possible. Moreover for aught weknow Mohipal might have acquired a title to it as a co-sharer by partition orotherwise. Therefore, it appears to us that the defendants have failed to showthat the plaintiff had no title to this 4-annas share which he bought from theson 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 Mohipalhad claimed any rent from them or had realised any rent from them and itappears that the claim for runt of the period in suit would be now hopelesslybarred. Therefore, we think that so far as his share is concerned thedefendants ought to pay; rent to the plaintiff on the ground that they hadadmitted his title by attorning to him as regards his share.

6. It is unnecessary to discuss the question as to whetherthe onus was rightly placed upon the defendants by the Courts below. It cannotbe doubted that when either through ignorance of title of the plaintiff or byfraud In the matter of execution of the kabuliyat the tenants attorned to theplaintiff, then according to the authorities of this Court, the defendants arenot altogether estopped but can show that the plaintiff had] no title, eitherwhen the kabuliyat was executed or attornment was made by payment of rent. Butif is shown in this case that the defendants were not placed in possession ofthe lands at the time either when the kabuliyat was executed or the defendantsattorned. In the present case the defendants were already in possession of theholding.

7. In the view that we have expressed of the questionsraised in this appeal it appears to us that the plaintiff is entitled to adecree to the extent of 12-annas share and the decrees of the Court below arevaried to that extent. The plaintiffs suit as regards the 4-annas share failsand is dismissed.

8. In the circumstances we make no order as to costs.

A.H. Cuming, J.

9. I agree.

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Chengtu Sarkar vs. Jaheruddin Mondal and Ors. (11.05.1925 -CALHC)