JUDGMENT

1. These two appeals arise out of the partition suit No. 19 of 1936 of the Court of the Subordinate Judge, Jalpaiguri, instituted by one Khatemannessa Bibi, since deceased, for self and on behalf of her two minor sons claiming in all 0-8-7 7/10 pies share in the properties given in the schedule to the plaint as some of the heirs of late Safikuddin Ahammad. Admittedly the properties given in the schedule 'ka' to the plaint once belonged to Safikuddin Ahammad and he died on 11th March 1924. The present suit was instituted on 9th September 1936. The plaintiffs' case is that the said Safikuddin Ahammad married three wives, namely, Taibannessa who predeceased him, Bibi Tanjina Khatun (defendant 1 in this case), and Bibi Khatemannessa, plaintiff 1; and that he died leaving the following relations as his heirs:

1. Two wives (a) Bibi Tanjina Khatun (defendant 1), (b) Bibi Khatemannessa (plaintiff 1).

2. Five sons (a) Khalilur Rahaman (plaintiff 2), (b) Khatibar Rahaman (plaintiff 3), (c) Latifar Rahaman (died before suit), (d) Tahmidar Rahaman (defendant 3), (e) Tabiur Rahaman (defendant 2).

3. Two daughters (a) Sayeda Khatun (defendant 4), (b) Sufia Khatun (died before suit).

2. Latifar Rahman's heirs are the plaintiffs themselves. Sufia Khatun's heirs are her husband Moulvi Ahamad Hossain Prodhan (defendant 7) and two daughters Begum Umme Salema (defendant 6) and Begum Rabeya Khatun (defendant 7). The plaintiffs thus claimed 0-8-7 7/10 pies share of the properties left by Safikuddin Ahamed. It is not disputed that if the plaintiffs are the widow and sons of Safikuddin as stated in the plaint their share in the property will be 0-8-7 7/10 pies. It has been found by the Court of first instance that items 3, 7, 14,15, 17, 20, 21, 22, 23, 24, 27, 28, 30 and 36 of schedule 'ka' were sold away in execution of decrees for arrears of rent obtained by the landlords in suits to which the present plaintiffs were made parties as heirs of Safikuddin Ahmed and purchased by defendants 17 and 18. Consequently, the plaintiffs' claims to these properties were barred by the provisions of Section 47 and Order 21, Rule 92, Civil P.C. The Subordinate Judge dismissed the plaintiffs' claim in respect of these properties, but allowed them their costs against defendants 17 and 18. There has been no appeal or cross-objection by the plaintiffs regarding these properties. Defendants 17 and 18 however have preferred an appeal against the decree for costs. This is F.A. 34 of 1939.

3. Defendants 1 to 7 are not contesting the claim of the plaintiffs. So far as the properties now in dispute are concerned the only contest is by defendants 9 and 14 and they are claiming the properties on the strength of mortgages given to defendant 14 by defendant 1 for self and as certificated guardian of her minor sons, defendants 2 and 3. Defendant 14 instituted suits in enforcement of these mortgages against these defendants 1 to 3, obtained decrees in them and put these properties to sale in execution of those decrees and purchased some of them himself, the others being purchased by defendant 9. Defendant 9 also claimed title to some of these properties on the strength of his purchase in execution of a decree for arrears of rent obtained by the landlord in suits to which the plaintiffs were not at all impleaded. It may be stated that in none of the above transactions and proceedings the plaintiffs were parties. The case of the contesting defendants was:

1. that the plaintiff 1 was not the widow of late Safiquddin Ahmed and that plaintiffs 2 and 3 were not the sons of Safikuddin; that plaintiff 1 was never married to Safikuddin; (2) that Safiquddin died leaving defendant 1 and defendants 2, 3, 4 and one Sana Khatun as his legal heirs; that they were in exclusive possession of the properties to the knowledge of the plaintiffs.

4. These defendants further contended

that in more than one suit the plaintiffs themselves declared that they were not the legal heirs of late Safikuddin Ahm