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Nirod Krishna Pal and ors. Vs. Indra Bhusan Gupta and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal805,53Ind.Cas.975
AppellantNirod Krishna Pal and ors.
Respondentindra Bhusan Gupta and anr.
Excerpt:
pleadings - procedure--issue not raised in pleading--court, whether can frame issue. - .....the land in suit. the assistant settlement officer held that the identity was established. the learned special judge was, however, of opinion that this identity was not established. he accordingly thought that the documents relied on were of no value in establishing the plaintiffs' title. he was also of opinion that the plaintiffs had failed to prove their case, that the thak survey was accurate and was supported by evidence adduced on behalf of the defendants, and that there was nothing to show that any exchange had taken place between the proprietors of the two estates. upon this view of the case he held that the plaintiffs' title was not established. this is a question of fact as to which the decision of the learned special judge is final.3. the finding of the assistant settlement.....
Judgment:

Syed Shamsul Huda, J.

1. This appeal arises out of a suit brought under the provisions of Section 106 of the Bengal Tenancy Act and relates to Dag No. 129 of the Settlement Khatian. In the record the plaintiffs' names are entered as occupancy raiyats in respect of an undivided 1/3rd share of this plot and as tenure-holders in respect of the remaining 2/3rds. Plaintiffs' case is that the whole Dag is within Mehal No. 2685 and they have Howla right to the whole of the Dag. This Dag is according to the Thak included in two different Mehals Nos.2661 and 2385, 1/3rd falling within the former and 2/3rds within the latter. The Assistant Settlement Officer decreed the plaintiffs' suit and held that they were Howladars in respect of the whole Dag. He doubted the correctness of the Thak, but held that even if correct there is no proof that some arrangements were not made between the proprietors of the two estates after the Thak survey by which the entire plot in suit came to be held by proprietors of estate No. 2685. He accordingly held that plaintiffs' title as Howladars to the whole Dag was established and that the plaintiffs had proved their possession for more than 12 years of the land in suit in assertion of their Howla right to the knowledge of the landlords.

2. The finding regarding the plaintiffs' title was largely based on certain documents to some of which the defendants' predecessors were parties and in which the plaintiffs' Howla right in respect of certain lands, which were described in those documents as Radha Krishna Khet, was recognised. The evidentiary value of these documents depended on the identity of Radha Krishna Khet with the land in suit. The Assistant Settlement Officer held that the identity was established. The learned Special Judge was, however, of opinion that this identity was not established. He accordingly thought that the documents relied on were of no value in establishing the plaintiffs' title. He was also of opinion that the plaintiffs had failed to prove their case, that the Thak survey was accurate and was supported by evidence adduced on behalf of the defendants, and that there was nothing to show that any exchange had taken place between the proprietors of the two estates. Upon this view of the case he held that the plaintiffs' title was not established. This is a question of fact as to which the decision of the learned Special Judge is final.

3. The finding of the Assistant Settlement Officer on the question of adverse possession was also to a large extent based on the same assumption regarding the identity of Radha Krishna Khet with the land in dispute. However, the learned Special Judge reversed the finding of the Assistant Settlement Officer on the question of adverse possession on another ground. He was of opinion that the issue was improperly allowed to be raised after the evidence was closed and inspite of the protest of the defendants. It has been argued that the learned Special Judge was under a misapprehension and that the issue was raised before the witnesses were examined. This may be so, but I do not think the appeal should succeed on this ground.

4. In this case the possession of the plaintiffs is not denied and in order to get a decree against their landlords the plaintiffs were bound specially to allege, not only that they were in possession for a long time, but also that they were in such possession on the assertion of their Howla right to the knowledge of the defendants. No such allegation is to be found in the plaint. The plaint was at no time sought to be amended. On the same day that the new issue was framed the parties were ready with their witnesses and these witnesses were examined on the same day. The defendants, therefore, were quite justified in objecting that they were taken by surprise and that the issue should not have been framed at that stage as it did not arise upon the pleadings of the parties. I think, therefore, the learned Special Judge was right in ruling out the issue relating to adverse possession.

5. The appeal is accordingly dismissed with costs.


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