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The Hon'ble Babu Brojendra Kishore Roy Chowdhury Vs. Raja Jugendra Kishore Roy Chowdhury (12.06.1918 - CALHC) - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal708,47Ind.Cas.5
AppellantThe Hon'ble Babu Brojendra Kishore Roy Chowdhury
RespondentRaja Jugendra Kishore Roy Chowdhury
Excerpt:
bengal tenancy act (viii b.c. of 1885), section, 106 - record of right, entry in, correction of--plaintiff and defendant recorded as joint, landlords--partition--burden of proof. - .....arrived. we start with the admission that there was a partition. it is true that there is nothing to show what was the precise result of that partition or what lands were allotted to the several co-sharers. that partition must have taken place before 1304. we find that from that date, that is to say, for twenty years past, the plaintiff has been in possession of this land and treating it as if he were in sole possession so far as his co-sharers were concerned. in the absence of any evidence on the part of the defendant no. 7 to show that that is possession on his behalf, we think- that the learned special judge is justified in saying that the record was incorrect and that the plaintiff should have been recorded as the sole landlord in this particular case that, of course, does not.....
Judgment:

1. This is an appeal by defendant No. 7 arising out of proceedings under. Section 106 of the Bengal Tenancy Act. Plaintiff brought the suit for correction of the entry in the Record of Rights in which the names of the plaintiff and defendant No. 7 were entered as the landlords. Plaintiff's case was that there bad been a partition of the estate between the co-sharers, that this particular part of the estate had fallen to his share and that he was the sole landlord of the tenants whose names were recorded in this Record of Rights. No evidence appears to have been given with regard to the partition, but we find from the judgment of the Special Judge that it was admitted by the Pleaders on both sides that there was a partition said to be a private partition, that some lands were still held (sic) and some exclusively. There was however no evidence before the Special Judge to show in detail what lands were so held and how at the time of the partition this land was treated. The Special Judge then went into the evidence of possession and, acting upon the authority of the cases which say where there is a question between rival proprietors the question of possession is the most important question for consideration, he found that the plaintiff had from 1304 onwards acted as the sole landlord of this part of the estate that he had let out the land to the tenants and had been receiving rent from them. There was no evidence before the learned Special Judge that the defendant No. 7 had asserted any right to the possession of this property either by letting out the land, or by receipt of rent, or in any other way. He, therefore, found that the plaintiff was really in possession and that his name should be recorded as the landlord of the tenants. It is objected on appeal on behalf of the defendant No. 7 that the oases referred to by the learned Special Judge deal only with the question of rival Zemindars and not, as in this ease, with the question of rival co-sharers. There is this distinction that in the former case there can be no question of joint possession or possession of the one being the possession of the other. In the ease of co-sharers there is this possibility, that the possession of one might be regarded as the possession of the other though exercised in the name of one only. But we think that, in the circumstances of this case, the learned Special Judge was justified in the conclusion at which he arrived. We start with the admission that there was a partition. It is true that there is nothing to show what was the precise result of that partition or what lands were allotted to the several co-sharers. That partition must have taken place before 1304. We find that from that date, that is to say, for twenty years past, the plaintiff has been in possession of this land and treating it as if he were in sole possession so far as his co-sharers were concerned. In the absence of any evidence on the part of the defendant No. 7 to show that that is possession on his behalf, we think- that the learned Special Judge is justified in saying that the record was incorrect and that the plaintiff should have been recorded as the sole landlord in this particular case That, of course, does not conclude the question of title which may be determined in other proceedings. The result is that the appeal must be dismissed with costs.


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