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Nishi Chandra Sen Vs. Romesh Chandra Majumdar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1935Cal209,155Ind.Cas.72
AppellantNishi Chandra Sen
RespondentRomesh Chandra Majumdar and anr.
Excerpt:
- .....1872. by the terms of the com. mise decree, to which harapriya and biswambhar were-parties, the right of brajeswari to a moiety share was recognised and the said share was leased out in temami right for six years by brajeswari to lakshmi kanta, the husband of harapriya. the plaintiff's further case is that although brajeswari was in possession jointly with harapriya. harapriya's husband lakshmikanta who looked after the affairs fraudulently caused the), name of harapriya to be entered in the records of fasson's survey which took place in the year 1878. it is on the basis of this record he says that the government granted in the year 1881 a jote settlement to harapriya. in the year 1895, there was a cadastral survey. brajeswari was recorded as an under-raiyat under harapriya, but she.....
Judgment:

Mitter, J.

1. This appeal is on behalf of the plaintiff for declaration of 'his alleged 8-annas share in a certain holding and for confirmation of possession. The subject-matter of the suit is the watery portion of a tank recorded in Dag No. 1609 of the settlement map. The plaintiff's case is that the said tank was recorded as Dag No. 328 of the Chitta of 1200 M.E. in the possession of Srimanta and Kalidas. The plaintiff's further case is that on the death of Srimanta, the property was inherited by Srimanta's son Radhakrishna on whose death the same passed to Brajeswari. The plaintiff is the daughter's son of Radha Krishna. The plaintiffs further case is that Kalidas' rights devolved ultimately upon Harapriya who is defendant 1. The other defendants are the sons of Harapriya. It appears that in the 1871 Biswambar purchased at an execution sale Brajeswari's alleged right whereupon Brajeswari instituted a suit to recover possession of her alleged share challenging the decree and the execution sale. In that suit Biswambhar, Harapriya and Harapriya's husband were parties defendants. The said suit ended in a compromise in the year 1872. By the terms of the com. mise decree, to which Harapriya and Biswambhar were-parties, the right of Brajeswari to a moiety share was recognised and the said share was leased out in Temami right for six years by Brajeswari to Lakshmi Kanta, the husband of Harapriya. The plaintiff's further case is that although Brajeswari was in possession jointly with Harapriya. Harapriya's husband Lakshmikanta who looked after the affairs fraudulently caused the), name of Harapriya to be entered in the records of Fasson's survey which took place in the year 1878. It is on the basis of this record he says that the Government granted in the year 1881 a jote settlement to Harapriya. In the year 1895, there was a Cadastral Survey. Brajeswari was recorded as an under-raiyat under Harapriya, but she having repudiated through Rasik the said position, her name was removed from the record of rights and Harapriya's, name alone continued to be on the record. It appears that in the year 1914, a tank was re-excavated by defendant 1 with the help of the District Board. She herself contributed a substantial sum of money. From the years 1914 to 1917 there were proceedings under Section 9, Specific Relief Act between the plaintiff and the defendants in respect of the banks of the tank and in respect of some of the proceedings the plaintiff was successful. In the year 1928 the Khas Tahsildar recorded the name of the plaintiff along with the name of Harapriya in the Government Register. It is on these facts that the plaintiff says that he has a moiety share in the jote which was created in the name of Harapriya in the year 1881. The plaintiff also based his claim to a moiety share on title by adverse possession.

2. The Court of first instance gave effect to some of the contentions of the plaintiff and decreed the suit. The lower appellate Court has, however, dismissed the same. It is admitted by both the parties that the tank in question appertained to a Noabad taluk belonging to the Government and that the Government had the right to make any settlement it liked. It is the finding of the learned Subordinate Judge that the banks of the tank in (respect of which proceedings were taken under Section 9, Specific Belief Act, do not appertain to the Noabad taluk, but they appertained to Taraf Mehals and were held under different titles. The learned Subordinate Judge points out that in the Mughi Chitta the possession of Srimanta and Kalidas was simply recorded but they had in fact at the time or thereafter no rights to the land. They assumed they had rights and on that footing dealt with the property by the transactions as mentioned above. In the year 1877, Mr. Fasson started his survey and in the course of the same it was found that Maghi Survey plot No. 328 together with Some other plots was lying unsettled. The Sub-Deputy Collector Pran Krishna Das enquired into the fact of possession and came to the conclusion that Harapriya was the only person in possession and was entitled to a settlement from the Government. Accordingly, in the year 1881, the land in suit was settled with Harapriya. That settlement for the first time created 'a right in the lands in suit. He accordingly held that so far as title is concerned, Harapriya is alone entitled to it. On the question of possession the learned Subordinate Judge in more places than one after reviewing the evidence came to the conclusion that the plaintiff was not in possession of the land in suit for a considerable period, much more than 12 years before the suit, and therefore, held that the plaintiff's claim based on a title by adverse possession was also not substantial. In my opinion, both these findings of the learned Subordinate Judge dispose of the matter. The right to the property was first created in the year 1881. The Government had the right to make settlement of Noahad lands with anybody it pleased. No doubt, in making the settlement the fact of previous possession is taken into account, but if the Sub-Deputy Collector had come to the wrong conclusion on the question of possession still the settlement which was made with Harapriya would confer a right on her alone in the land. In this view of the matter the plaintiff cannot claim any interest in the jote so' created. The mere fact that for sometime, the husband of Harapriya looked after the properties of the plaintiff would not make, him a trustee so as to give to the plaintiff on equitable principles a right to the settlement made by the Government in favour of Harapriya. The plaintiffs' claim based on adverse possession must also fail on the findings that he had no possession at least after the Cadastral Settlement which was finally published in the year 1898. For these reasons, I affirm the judgment and decree passed by the learned Subordinate Judge. The appeal is accordingly dismissed with costs.


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