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Sitanath Saha and ors. Vs. Monoranjan Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1939Cal148
AppellantSitanath Saha and ors.
RespondentMonoranjan Roy and ors.
Cases ReferredMaharaja Jagadindra Nath Roy Bahadur v. Secy. of State
Excerpt:
- .....of dacca although no portion of this touzi at that time was within the jurisdiction of the dacca district.8. it appears from ex. 13, the copy of the general register, part i of revenue paying estates, that touzi no. 9587 was situated in thana nawabgunj in the district of dacca. it further appears that when this property was sold by the collector and purchased by banga chandra on 25th june 1923 it was stated by the collector that the touzi was within thana nawabgunj; ex. 10 was registered three months after the revenue sale at which banga purchased. it was stated in that document that the lands conveyed by it were in thana nawabgunj in the district of dacca. mr. sen's contention is that although originally the lands of this touzi were within the jurisdiction of the dacca district,.....
Judgment:

Nasim Ali, J.

1. This is an appeal against the decision of the First Court of the Sub. ordinate Judge of Faridpur, dated 20th March 1934. A plot of char land measuring 1058.24 acres was formed in the bed of the river Padma in Mouza Biswanathpur, Khalpur, Bharasimul in P.S. Sadarpur and char Bhadrashin. This char land was attached by the Sadar S.D.C. of Faridpur under Section 3(1), Bengal Alluvial Land Act (Act 5 of 1920), on 10th January 1929. This attached area included some lands which were previously attached on 8th November 1926 under the same Act, but were subsequently released from attachment under the order of the Board of Eeve-nue. The Collector thereupon excluded this released land from the attached area. The remaining land was then surveyed and a map was prepared under Section 4(1) of the Act. The Collector then made a reference under Section 5(1) of the Act, to the District Judge of Faridpur for a decision as to what persons had title to the lands attached. The District Judge registered this reference as a suit and transferred it to the First Court of the Subordinate Judge at Farid-pur for disposal. The usual notices were then served on the claimants whose names were mentioned in the Order of Reference and general notices were served under the provisions of Section 5(2) of the Act. After the service of these notices several parties appeared before the Subordinate Judge claiming the lands attached under different titles mentioned in their petitions of claim. These claimants were grouped into 13 different groups according to the nature of their respective claims. The attached lands have been subdivided into blocks A, B, C, D, E and F in the map prepared under Section 4(1) of the Act. At the time of the hearing of the case before the Subordinate Judge, the first, third, fifth, sixth and twelfth parties did not appear.

2. The second party alleged that they were the proprietors of two touzis, namely 2638 and 2901 of the Dacca Collectorate, and that an area of 1.60 acre of land of block A and the entire area of block F 266 acres of block B and blocks C, D and E appertained to these two touzis. The case of the fourth party claimants is that they are the proprietors of Touzi No. 9567 of the Dacca Collectorate and that that portion of disputed land which falls within the Mouza Amirabad as re-layed in the case map according to the map of Hari Kisan Guha appertains to the touzi. They also allege that they are the owners of a certain share of Touzi No. 330 of the Dacca Collectorate and claim a portion of the disputed lands which fall within this touzi proportionate to their share. The other parties claim the entire area of the attached lands which fall within residuary chak of the thak map of Mouza Mukshedpur and 5 annas 6 gandas 3 karas of Chak No. 88 of that thak which appertains to Touzi No. 330. They denied the claim of the fourth party to that portion of the attached land which falls within the ambit of the Touzi No. 9587, that is Chak Amirabad as shown in the map prepared under Section 4(1), Alluvial Lands Act. The ninth party claims to be the owner of Touzi No. 327 of the Dacca Collectorate. His case is that the remaining portion of the attached land lying within Thak Chak 88 of Mouza Mukshedpur appertains to his touzi.

3. The learned Subordinate Judge on a consideration of the entire evidence in the case has arrived at the following findings : (1) That the area shown in the case map as Amirabad re-layed on the strength of the maps of Shiba Prosad and Har Kishore from the red thak lines appertains to Touzi No. 9587 and belongs to the fourth party. (2) That blocks C, D, E and E and portions of blocks A and B that are outside Touzi No. 9587 and are to the south of the line drawn towards the river from station 20 of Shiba Prosad's map appertain to Touzis Nos. 2638 and 2901 of the Dacca Collectorate and belong to the second party. (3) That the northern portion of the block B excluding the areas appertaining to Touzis Nos. 2638, 2901 and 9587 falls within the residue of Mukshedpur which appertains to Touzi No. 330 and 5 annas 6 gandas 3 karas of Thak Chak No. 88 of Mukshedpur of which 4 annas appertain to Touzi No. 327 and the rest appertains to Touzi No. 330. (4) That the share of the fourth party in Touzi No. 330 is as given in the D Register (Ex. 3-c and 44-1). The learned Judge directed a decree to be drawn up in accordance with those findings. The seventh party, the seventh claimant of the eighth party and the 13th party who are some of the proprietors of Touzi No. 330 have preferred this appeal against the decree of the Subordinate Judge. The 12th party have filed cross-objections. In these grounds of appeal the appellants claimed the lands decreed by the Subordinate Judge in favour of the proprietors of Touzis Nos. 9587, 2638 and 2901, but before the hear, ing of the appeal commenced they settled their dispute amicably with the owners of Touzis Nos. 2638 and 2901 and abandoned their claim to the lands decreed in their favour. A petition has been filed in the Court embodying the terms of settlement. The appeal so far as it relates to the lands decreed in favour of the proprietors of Touzis Nos. 2638 and 2901 who are second party claimants, respondents 1 to 22 in the appeal is therefore disposed of in accordance with the terms of compromise and the said petition of compromise will form part of the decree of this Court.

4. The appeal therefore is now confined to that portion of the disputed land which has been decreed in favour of the fourth party, who is respondent 43 in this appeal. Mr. Sen on behalf of the appellants urged three points in support of the appeal: (1) That the land which has been decreed by the Subordinate Judge in favour of the fourth party as appertaining to Touzi No. 9587 appertain to the appellant's Touzi No. 330. (2) That the fourth party has no title to Touzi No. 9587. (3) That the share of the fourth party in Touzi No. 330 is not 1/12 (1 anna 6 gandas 2 karas and 2 krants) as shown in the D Register but only half of it, namely 13 gandas 1 kara and 1 krant. The appellants, in support of their contention that the lands which have been decreed by the Subordinate Judge in favour of the fourth party as appertaining to Touzi No. 9587, appertain to their touzi, namely 330, rely on the Thak map of village Mukshedpur or Nandalalpur (Ex. c-H) which appertains to this touzi. This thak map was prepared in the year 1858.

In every case the question what lands were included in the permanent settlement is a question of fact and not of law. This question may or may not be satisfactorily proved by subsequent survey maps Maps and surveys made in India for revenue purposes are official documents prepared by competent persons, and with such publicity and notice to persons interested as to be admissible and valuable evidence of the state of things at the time they are made. They are not conclusive, and may be shewn to be wrong but in the absence of evidence to the contrary they may be prqperly judicially received in evidence as correct when made: See the case in Maharaja Jagadindra Nath Roy Bahadur v. Secy. of State (1903) 30 Cal. 291 at pp. 52 and 53.

5. The lands which have been decreed in favour of the fourth party as appertaining to 'Touzi No. 9587 fall within Chawk 88 and the residuary Chawk of the Thak map of Mouza Mokshedpur. Ex. 11, the field book of the Thak map shows that almost the whole of Chawk 88 and the residuary chawk was patit at the time of the thak survey. The thak map is evidence of possession at the time when it is made and as such evidence of title. The nature of the land measured in Chawk 88 and the residuary chawk was such at the time of the thak survey that it was incapable of actual cultivation. The presumption raised by the thak map that the land in question appertains to Touzi No. 330 has been sufficiently rebutted by the evidence in this case. Immediately after the thak survey the predecessors of the second party, that is the owners of Touzis Nos. 2638 and 2901, objected to the correctness of the thak map on the ground that it included certain lands of their touzis and it was found by the Civil Court that about 500 bighas of land appertaining to these two touzis were wrongly included in the thak map of Mouza Mukshedpur. In the year 1868 a map was prepared by Amin Shiba Prasad Chakravarty for the purpose of settling the land revenue of Taluk Kashinath Roy Bhabaniganga Bose which is now known as Touzi No. 9587. This map has not been re-layed on the case map. But as some of the stations of this map are identical with some of the stations of the Thak map of Mouza Mukshedpur, the position of the lands of this taluk with reference to the disputed lands can be easily ascertained. In fact, there was no dispute at the Bar that the lands which have been decreed by the Subordinate Judge in favour of the fourth party as appertaining' to Touzi No. 9587 are included in the lands which are shown in this map of 1868 as appertaining to Kashinath Roy Bhagbaniganga Bose. In the year 1892 a map was prepared by Amin Hara Kishore Guha for demarcating the boundaries of Touzi No. 9587 and the demarcation proceeded on the footing of the map prepared in the year 1868. In the year 1902 there was a suit by the proprietors of Touzi No. 9587 against the owners of Touzi No. 330 in respect of the lands of Touzi No. 9587. In that suit the title of the owners of Touzi No. 9587 to the lands of the touzi as shown in the map of 1868 was declared on compromise with some of the defendants and ex parte against the other defendants. In the Cadastral Survey map of the year 1908-10 the position of Touzi No. 9587 appears to be the same as shown in the demarcation map of the year 1892 with this difference only that some lands which were diluviated after demarcation map of the year 1892 includes some lands within Touzi No. 9487 which were not included in that touzi in the map of the year 1868. In the present appeal however we are not concerned with this portion of Touzi No. 9587. The lands in dispute in the present appeal have been all along treated from the year 1868 as outside entire Touzi No. 330 and as appertaining to Touzi No. 9587. It has been already decided in the suit of 1902 that the map of 1868 shows the position of Touzi No. 9587 correctly. In these circumstances I am of opinion that the learned Subordinate Judge was right in holding that that portion of the disputed land which is shown in the case map as appertaining to Mauza Amirabad (Touzi No. 9587) really appertains to that touzi.

6. Mr. Sen on behalf of the appellants contended that in view of the decision in a suit instituted by the seventh party against the fourth party in the year 1928, the fourth party is precluded from claiming any title to a portion of the lands which has been decreed by the Subordinate Judge in favour of the fourth party as appertaining to 9587 in the present suit. This objection was neither raised nor discussed before the trial Judge. There was a dispute at the Bar in the course of the hearing of this appeal as regards the position of the lands which were the subject-matter of the suit of 1928. Mr. Sen on behalf of the appellants made an attempt to fix the position of these lands with reference to the Cadastral Survey maps of Mouza Amirabad and the Record of Rights of that mouza. Mr. Sen also submitted that the plea of res judicata on the basis of the decision in suit instituted by the seventh party in the year 1928 could not be raised before the Subordinate Judge as the matter was not then finally decided. He made an application before us for taking the final judgment as evidence in this case. It appears however that the suit of 1928 was instituted against the fourth party in his personal capacity. In the present litigation, the fourth party claims the whole of Touzi No. 9587 as nutwalli of a certain endowment. The decision in the suit of 1928 therefore cannot operate as res judicata against the fourth party in present litigation. Mr. Sen then submitted that there are certain observations in the judgment of the learned Subordinate Judge from which it might be contended afterwards by the proprietors of Touzi No. 9587 that the question of title between them and the owners of Touzi No. 330 as regards the lands which are outside the decree of the suit of 1902 and the subject-matter of the present suit was finally decided in the present suit. In order to remove this apprehension, we declare that the question of title to lands appertaining to Touzi No. 9587 which are outside the scope of the present litigation and are outside the subject-matter of the suit of 1902 is left open between the parties.

7. As regards the second point raised on behalf of the appellants, it appears that one Banga Chandra Eudra purchased Touzi No. 9587 on 25th June 1923, at the revenue sale (Ex. 15). On 24th September 1923 Banga Chandra sold this touzi to Jyotirmayi Debi (Ex. 10). Jyotirmayi sold this touzi to the fourth party on 24th January 1929 (Ex. 9). The contention of Mr. Sen is that Jyotirmayi acquired no title to this touzi on the basis of her purchase from Banga Chandra, as the kobala in her favour was registered by the District Registrar of Dacca although no portion of this touzi at that time was within the jurisdiction of the Dacca District.

8. It appears from Ex. 13, the copy of the General Register, Part I of Revenue Paying Estates, that Touzi No. 9587 was situated in Thana Nawabgunj in the District of Dacca. It further appears that when this property was sold by the Collector and purchased by Banga Chandra on 25th June 1923 it was stated by the Collector that the touzi was within Thana Nawabgunj; Ex. 10 was registered three months after the revenue sale at which Banga purchased. It was stated in that document that the lands conveyed by it were in Thana Nawabgunj in the District of Dacca. Mr. Sen's contention is that although originally the lands of this touzi were within the jurisdiction of the Dacca District, subsequently on account of the shifting of the course of the river Padma which flows between Dacca and Paridpur, the lands of this Touzi were transferred before the registration of Ex. 10 to the jurisdiction of the Faridpur District. In support of this contention, Mr. Sen relied upon the evidence of Ofajuddin Sikdar, witness 1 for the 13th party. This witness in his evidence stated that no land of Touzi No. 9587 lay within Thana Nawabgunj since 1314 B.S. In his cross-examination this witness stated that he had seen the District Settlement papers of Nawabgunj Thana and that he did not see any land of Touzi No. 9587 in those papers and consequently his inference was that no land of that touzi was within Nawabgunj Thana. These District settlement papers have not been filed. Further, this negative evidence is not of much assistance in the determination of this question. The appellants did not produce the district settlement papers of the Thana of the Far id pur district to which, according to them, the lands of this touzi were transferred in 1314. Mr. Sen also relied upon the map of the revenue of Thana Nawabgunj published by the Government in 1922. The appellants however did not produce the map of the revenue Thana of the District of Faridpur to which this touzi is alleged to have been transferred in 1314 B.S. Reliance was also placed by the appellant on Ex. 4, the plaint in the suit of 1902 which was filed by the proprietors of Touzi No. 9587 against the proprietors of Touzi No. 330. In that plaint it is no doubt stated that the subject-matter of that suit was within the district of Faridpur. But from this plaint it is not clear whether the entire lands of this touzi were then dry. The eastern boundary of the land in that suit is given as lands of the river Padma. The evidence in this case indicates that this river was constantly shifting her course in this part of the locality sometimes encroaching on her right bank and sometimes on her left bank. It also appears from the map of the Eevenue Thana Nawabgunj that portion of the river Padma is included in the jurisdiction of Nawabgunj Thana. The C.S. map of 1908 and 1910 no doubt shows the dry lands of Touzi No. 9587 as lying within the district of Faridpur. But this map does not show the lands of the touzi which were in the bed of the river at the time. It cannot therefore be said that at the time of C.S. survey no portion of the Touzi No. 9587 lay within the jurisdiction of the district of Dacca. Mr. Sen also drew our attention to Ex. 35, the copy of the plaint in a rent suit, which was instituted by the proprietors of Touzi No. 9587 in the Munsif's Court at Bhanga, within the district of Faridpur. That plaint however was in respect of a portion of the lands of this touzi.

9. In Ex. 10, as has been already stated, it I was definitely stated that the mouza Amirabad was within the jurisdiction of the Dacca District. The Sub-Registrar did not raise any objection to the registration of this document. It was registered on the footing that the touzi was within the jurisdiction of the Dacca District. The onus is therefore upon the appellants to show that the Sub-Registrar had no jurisdiction. The appellants rely on the evidence which I have discussed above to discharge this onus. This evidence in my opinion is not sufficient to discharge this onus and to establish that the entire lands of Touzi No. 9587 were outside the jurisdiction of the Dacca District at the time when Ex. 10 was registered. I therefore hold that Jotirmoyi acquired a good title to Touzi No. 9587 by Ex. 10.

10. The third contention of the appellants relates to the share of the fourth party in Touzi No. 330. The case of the fourth party is that they have got 1/12th share in this touzi while the case of the appellants is that they had got only 1/24th share. D Register (Ex. 3-C) supports the contention of the fourth party. It is an admitted fact in this case that one Sita Nath Saha was the owner of the 1/12th share which is now recorded in the D Register in the name of the fourth party (Ex. 3-C). It is also an admitted fact that half of this share has. devolved upon the fourth party by successive transfers. The dispute now centres-round the other half. It is not disputed that Sitanath sold this other half to one Joshoda Lal Saha. The case of the fourth party is that one Ram Lal purchased this half share in execution of decree against Joshodalal on 11th August 1929 (Ex. 39} and that Earn Lal subsequently sold this half share to the fourth party on 7th May 1929 (Ex. 8). The contention of the appellants however is that Earn Lal purchased the interest of Joshoda Lal in these lands of this touzi which were in the district of Dacca and not in the district of Faridpur, and that Joshoda Lai's interest in the Faridpur lands was subsequently purchased by the seventh party in 1931 (Ex. 2-D). The question therefore is whether by Ex. 39' Ram Lal acquired the interest of Joshoda. Lal in the entire lands of this touzi. The decision on this question depends upon the construction of the Schedule of Ex. 39 which is in these terms:

Within Touzi No. 330 of the Dacca Collectorate is Tappe Nandalalpur whose annual Sadar Jama is Rs. 499-15-9 of whose the separate Hishaya, No. 330-1 of 1 anna 6 gandas 2 kara 2 kranti share bearing an annual Jama of Rs. 41-10-7 whose owner was Sitanath Saha. The half of the aforesaid share of 1 anna 6 gandas 2 kara 2 kranti, Sitanath Saha, i.e. 13 gandas 1 kara 1 kranti share, was owned and possessed by right of purchase by the judgment-debtor. Within the aforesaid mehal in the police station of Dohar and; Sub-Registry of Nawabganj Kismat Mukshedpur, and including the Hat (market place) Char, watery portion (beel)of the aforesaid Mukshedpur, Kismab Moura, Kismat Narisha, Kismat Easter Char of Narisha, Kismat Dighali, Kismat Rutia, Kismat. Bethua, Kismat Danchechania, Kismat Kalijira. and Kismat Satbhita and within the police station. of Keraniganj Kismat Pania, etc. In these mehala whatever right, title and interest the judgment-debtor have, its auction price Rs. 200.

11. Mr. Sen's contention is that the words these mehals in the concluding portion of the schedule must be read as referring to the villages mentioned immediately before these words, and as all these villages lie within the district of Dacca only the interest of the judgment debtor lying in the district of Dacca was sold. I am unable to. accept this contention. The schedule definitely states that the judgment-debtor is the owner of the half of one anna 6 gandas 2 kara 2 kranti share in the touzi which evidently means the entire Touzi. The words 'these mehala' in the concluding portion of the schedule must therefore refer to the share in the entire touzi. AH the villages of the touzi have not been mentioned because we find the words 'etc.' after 'Pania'. The operative portion is the right, title and interest of the judgment-debtor in the mahal itself, that is 13 gandas 1 kara kranti share of the entire touzi. Further on the basis of this document Ram Lal had his name registered in D Register without any objection from the judgment-debtor, Joshodalal Saha. The fourth party on the basis of their purchase from Ram Lal got their names registered in the D Register in respect of the entire share of Joshodalal. I am therefore of opinion that the share of the fourth party in Touzi No. 330 is, as stated in the D Register, namely 1/12th.

12. The result therefore is that the appeal so far as it relates to the lands which have been decreed by the learned Subordinate Judge in favour of the fourth party as appertaining to Touzi No. 9587 is dismissed. The cross-objections were not pressed at the time of the hearing of the appeal and are therefore dismissed without cost. The fourth party will get his costs in this appeal from the appellants. Hearing fee is assessed at 5 gold mohurs. The other respondents will bear their own costs. The application praying for taking additional evidenced view of our decision is rejected.

Henderson, J.

13. I agree. I only desire to say a few words about the attack which has been made on the title of the fourth party Jainuddin to Touzi No. 9587. I concur in the view taken by my learned brother that this attack has no substance in it. It is quite a common thing for the Board of Revenue to transfer riparian villages and char lands from one district to another on the ground of the administrative inconvenience, which is caused by sudden or violent changes in the course of a large tidal river. It cannot be disputed by the defendants that this was actually done in the present case between the two conveyances. There is in fact a reference to it in Ex. 9 the conveyance executed by Jotirmoyi in favour of the fourth party. Now it has been proved by extracts from the General Register of the Dacca Collectorate and the sales certificate that the lands of this touzi were included in the District of Dacca at the time of the earlier conveyance. There is absolutely no evidence offered on the other side to rebut this. I am further of opinion, that this attack is one which cannot be made by any of the appellants at all. They have absolutely no interest in the land of this touzi and the only result of giving effect to their contention would be that the land would remain indefinitely attached by the Collector. The question is one between Jaunuddin and Banga Chandra or his representatives if an attempt were made to recover possession of the land on the ground that there was no effective registration of this document, it might be open to the fourth party to take various defences which could not be relevant in the present proceedings. I am therefore of opinion that the appellants ought not to be permitted to raise this point at all.


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