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Kader Bux Patwari and ors. Vs. SalimuddIn Hazi - Court Judgment

LegalCrystal Citation
Subject Property
Decided On
Reported inAIR1930Cal267
AppellantKader Bux Patwari and ors.
RespondentSalimuddIn Hazi
- .....therein as lying to the south of the land which had been leased to defendant 1 the day before. the land in suit lies on the border between the lands of ex. 4 and ex. 4(a) on the one hand and ex. 5 on the other. then there was a partition between hasan and salimuddi, each of them having an 8 annas share in the lands, - by which partition hasanali got the northern half and salimuddi the southern half. on 3rd chaitra 1308 the original plaintiffs in this suit, amjad ali and asraf, took a lease of 7 kanis i.e., the northern half which fell to hasanali's share, in kayemi ryoti right by executing a kabuliyat ex. 1. both the courts below have arrived at the conclusion that the plaintiffs had a good title to the disputed lands as they are parts and parcels of the land demised by ex. 5. the court.....

Mukerji, J.

1. These appeals arise out of a suit for recovery of khas possession of, on declaration of the plaintiffs' title to, two plots of land described in schedule gha of the plaint, and also for mesne profits.

2. The plaintiffs case as laid in the plaint was that the disputed land appertains to a kayemi ryoti holding comprising 7 kanis of land, which the plaintiffs formerly held under one Hasanali and now under one Salemuddi Haji and others; that the defendants or some of them dispossessed the plaintiffs from a part of the disputed lands in Jaistha, 1312; that consequently the plaintiffs instituted a suit under Section 9, Specific Belief Act on 18th November 1905, obtained a decree and in execution thereof recovered possession on 20th January 1907; that they then remained in possession till Ashar 1318 when they were again dispossessed by some of the defendants from a portion, for which they instituted a suit in 1914 which they withdrew on 27th January 1916; and that, emboldened by this, all the defendants combined together and subsequently dispossessed them of the entire disputed land in Magh 1322.

3. The defence was that the plaintiffs or their predecessors had no title to the lands, that the lands in suit lie on two sides of a public navigable channel called Bairagir Dona; that on the east of the channel lies chur mandal, a permanently settled estate, and on the west lies chur Mirzamai'a, a Government khas mehal. The defendants' case was that defendant 1 was occupying certain lands in this locality when on 9th March 1891 one Rai Chandra Kumar Ray Bahadur ana another who were the owners of the superior taluk called Chur Balammara Bandabust Taluk having claimed the lands as appertaining to their taluk and as being part of the reformation of chur Lakshmi in Kismat chur mandal, he attorned to these owners and they granted a lease conferring abadkari jote right to him of 12 kanis of land lying on both sides of the channel; that one Ishan Chandra Tarafdar obtained a bowla lease of the lands on which defendant 1, executed a kaubliyat in his favour on 4th May 1891; that subsequently in 1904 Government made khas a part of the land and called it chur Mirzamara; that since then defendant 1 has been holding the lands on the east as under Ishan Tarafdar and those on the west as under the Government.

4. The facts necessary to be mentioned for the purposes of these appeals are the following. The land taken settlement of by the kabuliyat (Ex. 4) of 26th Falgoon 1297 (9th March 1891) which defendant 1 executed in favour of Rai Chandra Kumar Roy Bahadur and another was 12 kanis in area and was described as lying on the north of the land of Hasanali and Salimuddi. In the kabuliat (Ex. 4a) of 22nd Baisakh 1298 (=4th May 1891) by which defendant 1 attorned to Ishan Chandra Tarafdar who had taken a howla lease of the lands of the locality the same boundary was given and it was also stated that the area was 12 kanis. On the following day i.e., 23rd Baisakh 1298 (= 5th May 1891) Ishan Chandra Tarafdar granted a patta {Ex. 5) to Salimuddi and Hasanali of 14 kanis of land which was described therein as lying to the south of the land which had been leased to defendant 1 the day before. The land in suit lies on the border between the lands of Ex. 4 and Ex. 4(a) on the one hand and Ex. 5 on the other. Then there was a partition between Hasan and Salimuddi, each of them having an 8 annas share in the lands, - by which partition Hasanali got the northern half and Salimuddi the southern half. On 3rd Chaitra 1308 the original plaintiffs in this suit, Amjad Ali and Asraf, took a lease of 7 kanis i.e., the northern half which fell to Hasanali's share, in kayemi ryoti right by executing a kabuliyat Ex. 1. Both the Courts below have arrived at the conclusion that the plaintiffs had a good title to the disputed lands as they are parts and parcels of the land demised by Ex. 5. The Court of appeal below however has held that out of the two plots of land of schedule gha the one being plot 2 of that schedule, which lies on the east of channel, the plaintiffs have failed to prove dispossession within 12 years and that on the other hand the defendants have been in possession of that plot for a much longer period till the institution of the suit, and in that view dismissed the suit so far as that plot was concerned. As regards plot 1, of schedule gha the Court of appeal below has decreed the suit. From this decree, some of the defendants have preferred Section A. No. 608 of 1927 and the plaintiffs a cross-objection. As regards mesne profits a separate decree was passed on appeal by the lower appellate Court from which a separate appeal has been filed by the said defendants being Section A. No. 590 of 1927, and the plaintiffs have also preferred a cross-objection. It will be convenient to take the appeals separately.

5. S.A. No. 608 of 1927. - The appeal relates to plot 1, schedule gha, and the cross-objection to plot 2 of that schedule. In connexion with this appeal the appellant's contentions are two in number, 1st that the suit was not maintainable; and 2nd, that the Courts below have misappreciated the legal effect of the settlement made under Regn. 7 of 1822, in view of which the settlement which the plaintiffs had obtained from a trespasser, could not possibly prevail.

6. The first of these contentions is based upon two grounds. One of these grounds is that the original plaintiffs Amjad and Asraf instituted this suit on 25th May 1917 and then on 4th March 1919 they transferred their rights to certain other persons in the name of one Nur Miah. On 17th February 1923 Amjad died and no substitution having been made in the meantime the suit abated as far as Amjad was concerned on 17th May 1923 under Order 22, Rule 3. On 16th July 1923 Amjad's widow made an application to set aside the abatement. On 17th July 1923 Nur Miah applied to be substituted in the place of the original plaintiffs Amjad and Asraf. On 25th September 1923 Salimuddi and Salamatulla applied to be substituted in the place of the said original plaintiffs alleging that they were the real purchasers while Nur Miah was a mere benamidar. On 27th September 1923 the Munsiff took up all these applications and refused the widow's application holding that she was no longer the representative of Amjad and also that she had not explained the delay in making the application, and granted the applications of Nur Miah and of Salimuddi and Salamatulla. It is contended that the suit having abated the order for substitution could not be made. We are of opinion that no final order having been made in the suit at the dates when the applications were made, the applications were fit to be entertained under Order 22, Rule 10, Civil P.C., and that no question of limitation arose. The suit, in our judgment was a pending suit in which an application for substitution on the ground of assignment, creation or devolution of interest could be properly made and that the order for substitution was rightly made. The other ground on which the maintainability of the suit has been questioned is that defendant 6 died during the pendency of the suit and his heirs were not substituted in his place and as it was a suit for possession against alleged trespassers the whole suit should fail. The point was not raised in any of the Courts below and as the contention involves the investigation into the question whether there was really any heir of defendant 6 who survived him, and whether defendant 6 was in possession of a specific plot separately or not and whether his heir, if any, is in such possession or not, it cannot be entertained at this stage. The ground, again, has not been taken in a memorandum of appeal.

7. As regards the second contention set forth above namely that relating to the effect of the settlement made made under Regn. 7 of 1822, the facts seem to be as follows; In 1905-1906 the Government had the land on the west of the channel surveyed and settled under the Land Revenue Settlement Regn. 7 of 1822. Plot 1, Schedule Gha of the plaint in respect of which the plaintiffs have obtained the decree in the present suit is plot 773 of the map-prepared in that survey. The map and the khatians of that survey have been put in that case, and according to the appellants the khatian shows that plot 773 of that survey was recorded as in the possession of defendant 1 appertaining to his jote held under Ishan Tarafdar. The appellants' contention is that this entry in the khatian created a title in defendant 1, which should be taken to have ousted that of the plaintiffs who* claimed to have obtained settlement from persons who were mere trespassers. We have examined the provisions of Regn. 7 of 1822 and we are of opinion that the intention of a settlement made under that regulation is not to touch or disturb the possession of persons in actual possession of the lands but rather to respect such possession and that the entries in the khatians prepared for the purposes of a settlement under the regulation do not confer a title on the person in whose favour such entries are made; but only record the fact of their possession to serve as a basis for calculation of the revenue. Where, as here, it has been found on the entire evidence that defendant 1 was not really in the possession of the plot 773 but the entry was erroneous, there is no question of defendant 1 acquiring any title or of his title prevailing over that of the plaintiffs. The intention of the settlement under the regulation as disclosed by its own terms as also by the documents Ex. C and G series was to keep in tact-the incidents of Ishan Tarafdar's howla and the rights of the undertenants and not to sweep them away. It appears, further from para. 5 of written statement of defendant 1 that defendant's case was that the western portion of Dag 773 which is the subject matter of this appeal was being held by the defendant under Ishan Chandra Tarafdar who was the middleman under the Government. In our opinion para. 5 recognizes the fact that the Government did not interfere with the rights of the howladar Ishan Chandra and the real controversy in this case therefore turned in the Courts below on the question as to whether the lands were included in the kabuliat which defendant executed in favour of Ishan Chandra on 22nd of Baisakh 1298 (May 1891) (Ex. 4(a) ) or whether they were included in the pattah granted by Ishan Chandra in favour of the plaintiffs Salimuddi and Hasan Ali on the following day i.e., 23rd Baisak 1298 and both the Courts below have concurrently found that the western portion of plot 773 is covered by plaintiffs' patta (Ex. 5) see passages 11 and 27 of the paper-book. The lower appellate Court rightly points out that the question that really arises for decision is one in the nature of a boundary dispute or in other words what is the real boundary line between the two lease holds of Exs. 4(a) and 5. This question having been answered in favour of the plaintiff respondent by both the Courts below the question in second appeal becomes really one of parcel or no parcel and upon such a question the findings of the lower Court are conclusive. It is also to be noticed that the admission made by defendant in para. 5 of the written statement regarding the recognition by Government of Ishan's howla is in accordance with facts proved by evidence before the Court, for the lower appellate Court points out that the entries in Ex. G(1) and other khatians leave no room for doubt that the settlements made by Chur Muudal zamindars with Ishan and his tenants were left in tact and recognised by Government and their existing rights were not disturbed and were not intended by Government to be disturbed by measurement of a portion within Chur Mirzamara Khas Mehal, the Courts below, in our judgment, having taken the correct view of this matter.

8. The two contentions urged in support of the appeal both fail and the appeal accordingly will be dismissed.

9. The cross-objection is not pressed and it is also dismissed.

10. Each party will bear his or their costs in the appeal and the cross-objection,

11. S.A. 590 of 1927 - None of the grounds urged in support of this appeal is of any substance except one which is to the effect that on calculation being made on the principle adopted by the Court of appeal below the amount of mesne profits would come up to Rs. 435 and not Rs. 450. This argument is not seriously opposed. The appeal will be dismissed subject to the modification that instead of Rs. 450, Rs. 435 will be put in the decree as the amount of mesne profits to be awarded. The other directions in the decree of the lower appellate Court will stand. The cross-objection is not pressed and is also dismissed. Each party will bear his or their costs in the appeal and the cross-objection.

Mitter, J.

12. I agree.

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