1. The plaintiff-respondent brought this suit for declaration of his title to and possession of a 2-annas share, in the residuary chak of thak No. 3450 of Mauza Rampasha, as appertaining to the Taluq No. 24775-59, Benode Ram Gopal, which he had purchased at an auction sale and of which he alleged that the defendants had prevented him from taking possession. He also asked for mesne profits. He stated in his plaint that the other 14 annas of the mauza appertained to 5 other taluqs of which he gave details.
2. Written statements were filed by various sets of defendants and a number of issues framed by the first Court, of which the most important seem to have been whether a 2-annas share of any land in Mauza Rampasha appertained to the plaintiff's taluq and as to liability of various defendants for mesne profits.
3. The Subordinate Judge made a decree declaring plaintiffs' title to an undivided 2-annas share of the lands of the residuary chak of the thak map No. 3450 of Mauza Rampasha. He directed that the map should be relaid in the locality by a Commissioner in execution proceedings, who would deliver possession. He also awarded mesne profits, the amount to be ascertained later against defendants Nos. 1 to 20 and 22.
4. On appeal the Additional District Judge upheld the judgment and decree of the Subordinate Judge, but in doing so remarked that the plaintiffs would not be entitled by virtue of the decree to claim joint possession of any specific plots which the defendants may hold as part proprietors of any of the taluqs which own land jointly in Mauza Rampasha.
5. These remarks of the learned Judge have not been incorporated in the decree. Nor was it intended that they should be. The object was evidently merely to make clear to the plaintiff's the limitations of the decree for possession given to them. But they have been made the foundation for the main arguments advanced on behalf of the appellants: they have been presented as a finding on the part of the learned Judge that by some arrangement, express or implied, the appellants were in exclusive possession of plots of lands representing their interest not only in the taluq which was sold, but in others of the five remaining taluqs comprised in the 16 annas of the mauza and on this again, have been based the further arguments that the exact limits of the residuary chak should have been ascertained by re laying the boundary during the course of the suit and that it should have been found in the course of the suit exactly which was the land from possession of which the plaintiffs had been kept, that this question should not have been left to be decided in execution proceedings, and unless this was found the decree for possession could not be executed.
6. In addition it has been urged that the subject-matter of the suit has not been described with the particularity required by Order VII, Rule 3, that the defendants should not have been made liable jointly for mesne profits and that the learned Judge was wrong in giving preference to the thak map over the mouzawari papers and halabadi chittas filed by the defendants.
7. The objection that the land has not been described with sufficient particularity is, in my opinion, unsubstantial. The name of the village is given, so are the name and number of the taluq and the number of the thak. But this is not all. Of the defendants, who have appealed one only, viz., No. 2, raised an objection in his written statement on the ground of uncertainty of the subject-matter. He stated in one paragraph that want of a definite description and boundaries of the land had proved a bar to a proper answer being filed. And even though a supplementary written statement was put in by two of the defendants, Nos. 11 and 14, 19 months after the first written statement, no objection was taken on this ground. Nor does the objection of defendant No. 12 appear to have been pressed in any way after the filing of the written statement.
8. The argument that the learned Judge gave undue preference to the thak map would seem, thus broadly stated, to involve a pure question of fact and as such not one to be admitted in second appeal. But it takes this form: though the learned Judge's finding that the thak map is preferable to the mouzawari papers might be unassailable in second appeal, the halabadi chittas are documents of title and the effect to be given to them is a question of law. To support his argument the learned Vakil has referred to certain passages at page cxxviii et seq of Words' Introduction to the Assam Land and Revenue Regulation. But he seems to have confused halabadi pattas with halabadi chittas, which cannot be called documents of title. The argument thus loses its force and the matter is reduced to a pure question of fact, and the learned Judge has found, a finding which cannot be interfered with in second appeal, that as evidence the thak map is to be preferred to the papers relied on by the appellants.
9. The arguments that the appellants should not have been made jointly liable for mesne profits also depends on the findings of fact of the learned Judge. The learned Judge says, joint tort-feasors are jointly and severally liable for damages.' I do, not think the learned Subordinate Judge was in error when he found the above defendants jointly liable for mesne profits.' It is admitted that if the appellants combined to keep the plaintiffs out of possession they would be jointly liable for mesne profits, but it is argued that that is not the case here and in the absence of such a state of things, the liability of each appellant is limited to mesne profits in respect of the land out of possession of which he kept the plaintiffs and that this was an additional reason for re-laying the boundaries in the locality before a decree was given. It is to my mind perfectly clear that the learned Judge, though he does not say it in so many words, intended to find that the appellants combined to keep the plaintiffs out of possession. If that was not his intention his reference to joint tort-feasors is absolutely meaningless.
10. No difficulty as to mesne profits arises from the fact that the boundaries have not been re-laid in the locality. This is not one of those cases in which a question, which it was essential to decide in the suit, has been left to be decided in execution proceedings. That argument might have had force had there been dispossession of specific plots. But here there has been dispossession, or rather a keeping out of possession, of the whole of an undivided share of the mauza.
11. As already indicated, the main argument for appellants was that they could not be deprived of possession in execution because the lands of which they are in individual possession represent not only their shares in the taluqs purchased by the plaintiff, but of other taluqs. Now not only is there no finding that this is the nature of the possession of the appellants but a reference to the pleadings makes it clear that there could be no such finding. This state of things was not alleged by any one of the defendants who filed a written statement. Of the present appellants the three who filed written statements, viz., Nos. 11, 12 and 14 said they had nothing to do with any land of the taluq bought by plaintiffs, and they did not contest his right to get possession of any land in that taluq. Then in their supplementary written statement defendants Nos. 11 and 14 stated that none of the six taluqs, i.e, the plaintiffs' and the other five specified in the plaint were ijmal. And from the judgment of the Subordinate Judge it would appear that the case was fought out on that line in the first Court. Even if this line of defence is not inconsistent with the theory now set up, I do not think I am doing the appellants an injustice when I say that the theory now presented was never made a prominent part of the defendants' case or involved in the issues framed. Apparently possession of specific plots was advanced as an argument that the taluqs were not ijmal, and the learned Subordinate Judge to meet the argument hazarded the conjecture that possession of specific plots might have been with the consent of the proprietors of other taluqs. But possession of separate plots was never advanced as a bar to the plaintiffs' obtaining possession on the lines now formulated.
12. It is quite possible that if in execution the plaintiffs attempted to take khas possession of lands in possession of the defendants, difficulties might arise if it were found that those defendants were proprietors of other ijmali taluqs, but there is no fault to be found with the decree given by the learned Subordinate Judge with which decree the first Appellate Court has not interfered. The decree is one for joint possession and the method of executing it is indicated in Order XXI, Rule 35.
13. As regards the argument that possession cannot be given unless the exact subject-matter of the suit has been ascertained by boundaries and that that should have been ascertained in the suit itself, it is sufficient to say that that is the same argument which was raised in connection with the mesne profits in another form and requires no further discussion.
14. I would, therefore, dismiss the appeal with costs.
D. Chatterjee, J.
15. I agree.