Nilmani Mondal vs Chekan Mondal and Others

Duval, J.—In this case, the plaintiffs brought a suit in respect of one and a half bighas of homestead land, their case being that the tenancy was created by acceptance of a kabuliyat from the predecessors of the defendants. Of the three defendants, defendant 1 denied that he had any interest, defendant 2 did not appear and defendant 3 contested saying that the land was not held under the plaintiff at all but held under one Hari Mondal at a different rental, from whom he had a potta which he produced. The first Court decreed the suit. He went into the evidence and found that the relationship of landlord and tenant in respect of this land existed between the parties and the rent was due. He considered the fact that there had been a previous decree for rent in which a kabuliyat was mentioned, though the kabuliyat on which the plaintiff based the inception of the tenancy was not produced in the present suit. He also considered other points and then gave his decision. The learned Subordinate Judge however, in delivering a judgment of affirmance, has dealt with nothing at all except that he says that there was a previous rent-decree. On the other hand, he says the potta of the defendants does not show that it relates to this land but he also says

We do not know whether the kabuliyat lands, whatever they may be, are the same as plaint lands but that is no matter and the identity of the same may be left open.

I cannot hold that this is a sufficient judgment by a final Court of fact for the disposal of this matter. The defendant has a right to have a judgment deciding the points of fact and not merely a judgment in affirmance come to by just saying that there was a previous decree and so there can be a decree now. In the result, I must set aside the judgment of the Subordinate judge and send back the case for re-hearing of the appeal accord-ding to law. Costs in this Court will abide the result.