1. This is an appeal on behalf of three of the defendants ina suit for recovery of possession of land on establishment of title. Theplaintiff prays for cancellation of a sale held in execution of a decree forarrears of rent against her mother and asks for recovery of possession. Hercase in substance was that the decree was obtained by fraud and that in anyevent her interest in the disputed property could not be affected by a saleheld in execution of a decree obtained against her mother.

2. In the Court of first instance the suit was dismissed on twogrounds, namely, that fraud had not been established and that the mother of theplaintiff represented the tenancy in the books of the landlord. Upon appeal thelearned Subordinate Judge has not entered into the question of fraud; but hehas held upon the authority of the decision of this Court in the case of AshokBhuiyan v. Karim Bepari : 9 C.W.N. 843, that the title of theplaintiff could not be affected inasmuch as the decree was obtained against hermother.

3. The defendants have now appealed to this Court and ontheir behalf it has been contended that the learned Subordinate Judge has takenan erroneous view of the effect of the execution-sale impeached by theplaintiff. In our opinion there is no room for controversy that the judgment ofthe Subordinate Judge cannot be supported. As was pointed out by this Court inthe case of Jagat Tara Dassya v. Daulati Bewa : 2 Ind. Cas.695 : 13 C.W.N. 1110 : 37 C. 75, the decision in Ashok Bhuiyan v. Karim Bepari: 9 C.W.N. 843 does not lay down any rule of universalapplication that one person cannot represent a tenancy in the books of thelandlord on behalf of himself and his fellow-tenants. Indeed the contrary viewhas been maintained in a long series of decisions amongst which reference maybe made to those of Rupram Namasudra v. Iswar Namasudra 6 C.W.N. 302 and AfrazMollah v. Kulsumannessa : 10 C.W.N. 176 : 4 C.L.J. 68. Thequestion whether one of several heirs of the original tenants represents thetenancy on behalf of all the persons interested, is essentially a question offact. The learned Munsif in this case found that the mother of the plaintiffrepresented the tenancy on behalf of the plaintiff and her sister and hereferred to circumstances from which this inference could be legitimatelydrawn. The learned Subordinate Judge has not taken into consideration any ofthese circumstances but he has held as an inflexible rule of law that themother of the plaintiff could not represent the tenancy so as to entitle thelandlord to obtain in a suit brought against her a decree binding upon all thepersons interested in the tenancy. Such a view cannot be maintained.

4. The result, therefore, is that this appeal is allowed,the decree of the Subordinate Judge set aside and the case remanded to him. Hewill consider the question raised in the fourth issue, namely, "did theplaintiff allow Begum Bibi to represent the jama in suit Is she thus estoppedfrom impugning the validity of the decree and sale in execution, thereof" If this question is answered against the plaintiff the other questionsthat arise in the case must be decided. The cost of this appeal will abide theresult

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Gagan Sheik vs.Abajan Khatun (26.01.1911 - CALHC)