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Mohesh Chandra Chakrabarty and ors. Vs. Hemendra Nath Sen Chowdhury and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal104
AppellantMohesh Chandra Chakrabarty and ors.
RespondentHemendra Nath Sen Chowdhury and anr.
Cases ReferredTepu Mahammad v. Tefayet Mahammad
Excerpt:
- .....disputed lands and for recovery of khas possession. the case as stated in the plaint is that the suit lands were formerly waste lands and appertained to plaintiff's zemindari mouza garaki and they were subsequently settled with the pro-forma defendants who possessed them and that sometime after the settlement defendants 1 and 2, now appellants, brought a suit against the pro-forma defendants for establishment of title to and for khas possession of the lands now in dispute.2. the pro-forma defendants contested the suit but ultimately they could not continue their defence with the result that defendants 1 and 2, now appellants, obtained an ex-parte decree and in execution of that decree took khas possession of the lands now in suit. this gave rise to the cause of action in the present.....
Judgment:

Mitter, J.

1. This is an appeal from a ?decision of the Subordinate Judge of Mymensingh, dated the 28th June 1924, which reversed a judgment and decree of the Munsif of Tangail, dated 12th February 1923. The appeal arises out of a suit commenced by the plaintiffs, now respondents, for a declaration of the plaintiff's zemindari right to the disputed lands and for recovery of khas possession. The case as stated in the plaint is that the suit lands were formerly waste lands and appertained to plaintiff's zemindari mouza Garaki and they were subsequently settled with the pro-forma defendants who possessed them and that sometime after the settlement defendants 1 and 2, now appellants, brought a suit against the pro-forma defendants for establishment of title to and for khas possession of the lands now in dispute.

2. The pro-forma defendants contested the suit but ultimately they could not continue their defence with the result that defendants 1 and 2, now appellants, obtained an ex-parte decree and in execution of that decree took khas possession of the lands now in suit. This gave rise to the cause of action in the present suit. The defence of defendants 1 and 2 was that the suit lands appertained not to plaintiff's mouza Garaki but to mouza Baradam of the pro-forma defendants. There was a local investigation and after trial the Munsif dismissed the plaintiff's suit holding that the lands appertained not to plaintiff's mouza Garaki but to mouza Baradam. The Munsif also held that the defendants being settled raiyats of Baradam acquired occupancy right to the disputed lands and could not in any event be evicted.

3. An appeal was carried by the plaintiffs to the Court of the Subordinate Judge of Mymensingh. The learned Subordinate Judge held on a consideration of the evidence that the lands in dispute fell within the plaintiff's mouza Garaki. He also held that the plaintiffs had been in possession of the disputed lands with in twelve years of suit and that the defendant's possession for a period short of twelve years did not give them any right to resist the suit for possession commenced by the plaintiffs. The Subordinate Judge accordingly allowed the appeal and decreed the plaintiff's suit in part for 3 bighas 19 cottas and 2 chataks of the disputed lands which according to the commissioner's report and map fell within the plaintiff's mouza.

4. Defendants 1 and 2 have, as I already said, preferred a second appeal and three points have been taken before us by the learned advocate for the appellants. It is said in the first place that the lower appellate Court was not right in not entering into the question of limitation and in not deciding on the same. It is said in the second place that in any event the defendants having taken possession of the lands from a trespasser under the bona fide belief that the said trespasser had right to these lands, were protected from eviction by reason of the principle of the decision in the Pull Bench case of Binode Lal Pakrashi v. Kalu Pramanih (1893) 20 Cal. 708 (F.B.). The third ground which related to the question of plaintiff's title to the suit lands was not ultimately pressed. It is now conceded on behalf of the appellants that the finding that a portion of the lands in suit (3 bighas 19 cottas 2 chataks) belongs to plaintiff's mouza Garaki cannot be challenged in second appeal.

5. We have now to consider the two grounds which were urged by the learned advocate for the appellants. With regard to the question of limitation the finding is that according to the defendant's own case they took settlement in the year 1316 corresponding to the English year 1909 and the suit was commenced in 1921 within twelve years of that date. Reliance has been placed with regard to this point on an entry in the settlement record, which shows that in any event the defendant's lessor was in possession in 1314 corresponding to the English year 1911. The possession was also within twelve years of the suit. The lands are waste lands and if title has been found with the plaintiff's possession in respect of these lands must be presumed to follow title and in the absence of any finding as to entry by some, other persons on these lands beyond twelve years of suit no question of limitation can arise. There is no dispossession or discontinuance of possession, unless one person's possession terminates and is followed up by somebody else's possession. It is not defendant's case that any body else was in possession beyond twelve years of suit and defendant's possession on his own case began in 1909/1316 within twelve years of suit. There is, therefore, no substance in the first ground urged.

6. With regard to the second ground taken, the finding of the lower appellate Court is that the entry of the defendants was not in good faith as the lessor was not in actual possession of the lands. This circumstance distinguishes the present case from the Full Bench case of Binod Lal Pakrashi v Kalu Pramanik (1893) 20 Cal. 708 (F.B.). As will appear from the judgment of Sir Comer Petheram, C.J., in that case the persons from whom the tenants took the settlement were in actual possession of the zemindari within which the lands in dispute in that suit were situated and who were then the only persons who could give possession of the lands of the zamindari to the cultivators. One of the reasons of the decision in that case was that the tenant took settlement bona fide from the person who was in actual possession of the lands, which were ultimately ascertained by judgment of a Court of law not to belong to them. In this connexion the decision in the case of Tepu Mahammad v. Tefayet Mahammad (1915) 19 C.W.N. 772 might be referred to where Richardson, J., in delivering judgment of the Court said as follows:

Where a person has been in possession o particular estate or a particular portion of an estate as de facto landlord, it may be that raiyats settled by him on the land would have a good answer to a suit for ejectment brought by the true owner, but to carry the principle laid down by the Pull Bench to the extent to which it has been carried in this case is to go much too far,

and again the learned Judge said:

No case is made, therefore, for the application of the principle of the Full Bench decision. That principle only applies where raiyats are settled upon land by a person in de facto possession as landlord who is afterwards found to have no title. It is not applicable to every boundary dispute or in every case where a question of parcel or no parcel arises.

7. The question as to whether a settlement is bona fide or not depends on the circumstance as to whether the settlement was taken from a person who although was ultimately found to have no title, was at any rate in actual possession of the lands in suit. This distinguishes the present case from the Full Bench case. There is, therefore, no substance-in the second ground urged. The appeal, therefore, fails and is dismissed with costs.

Rankin, C.J.

8. I agree.


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