Skip to content


Shib Chandra Roy Chowdhury and ors. Vs. Harendra Lal Rai Chowdhury and Jotindra Nath Bose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.315
AppellantShib Chandra Roy Chowdhury and ors.;jotindra Nath Bose and ors.;taran Krishna Naskar and ors.
RespondentHarendra Lal Rai Chowdhury and Jotindra Nath Bose and ors.;harendra Lal Rai Chowdhury and Khogendra
Excerpt:
res judicata - co-sharer zemindar purchasing tenure--suit, against neighbouring zemindars and their tenants for declaration of title--decree, whether res judicata as regards zemindari title--permanent tenure-holder, whether represented by zemindar in title suit-possession, constructive, whether claimable-by trespasser--revenue survey map, accuracy of--presumption. - george woodroffe, j.1. the facts have been set out in the judgments of the learned judges of this court upon whose difference of opinion the matter has been referred to use as also in the judgment of the subordinate judge. it is not necessary to repeat them in detail. the suit is by the plaintiff against six defendants. it was dismissed by the subordinate judge as against defendants nos. 5 and 6 and decreed against the defendants nos. 1 to 4. on appeal to this court the learned judges differed and as there was, therefore, no judgment concurring in, varying or reversing the decree appealed from, it was ordered that the decree of the subordinate judge be affirmed and the cross-appeals dismissed, each party paying his own costs. the ease has, therefore, been referred to us for decision under.....
Judgment:

George Woodroffe, J.

1. The facts have been set out in the judgments of the learned Judges of this Court upon whose difference of opinion the matter has been referred to use as also in the judgment of the Subordinate Judge. It is not necessary to repeat them in detail. The suit is by the plaintiff against six defendants. It was dismissed by the Subordinate Judge as against defendants Nos. 5 and 6 and decreed against the defendants Nos. 1 to 4. On appeal to this Court the learned Judges differed and as there was, therefore, no judgment concurring in, varying or reversing the decree appealed from, it was ordered that the decree of the Subordinate Judge be affirmed and the cross-appeals dismissed, each party paying his own costs. The ease has, therefore, been referred to us for decision under the Letters Patent.

2. There are three appeals before us in which the defendants severally are appellants. In Appeal No. 9 of 1917 the 1st defendant is Appellant, in Appeal No. 8 of 1917 the 2nd and 3rd defendants are appellants and in Appeal No. 6 of 1917 the 4th defendant is appellant. In each of the appeals the plaintiff and the defendants other than the appellants are respondents, the 5th and 6th defendants not appearing in any of the appeals.

3. The plaintiff is the owner of Taraf Ushpara in Estate No. 52999, formerly part of Touzi 145. In Ushpara there is a Mouza called Gangapur Bagmari. In the western portion of Bagmari there is a mokarrari lease which was formerly held by one Gokulmoni Dassi and is now held by the 1st defendant. The land covered by this lease is the subject-matter of this suit. The plaintiff says that the whole of the lands in suit are his property appertaining to Ushpara No. 2999, and that be is entitled to the entire rent for the land. He brings this suit because in the Record of Rights entries have been made showing not only the plaintiff but also the defendant No. 4 (in respect of Estates Nos. 172 and 173) and the defendants Nos. 5 and 6 (in respect of Estates Nos. 147-1, 147-2) as proprietors of the land in dispute. It also shows that not only defend-ent No. 1 but also defendants Nos. 2 and 3 are in possession as tenants. These last named defendants are tenants of defendant No. 4. The suit has been dismissed as against the defendants Nos. 5 and 6 and we are no longer concerned with them. Estates Nos. 172 and 173 are represented by the 4th defendant. The estate is called the Tardah estate and its owners the Panihati Babus. This estate is to the west of that of the plaintiffs. The western portion of Bagmari abutting it has, so far as it is in cultivation, been recovered from jungle. As the portion of Tardah abutting Bagmari was also jungly, a dispute has arisen as to the ownership of the latids. The suit, therefore, is one as between two Zamindars, namely, the plaintiff and the Tardah proprietors represented by the 4th defendant, and the point in issue is whether the land in suit wholly belongs as alleged to the plaintiff, or whether a portion of it belongs to the proprietors represented by defendant No. 4. It is admitted that the portions of Bagmari called Dasani Bheri and Andharia Bheri belong to the plaintiff but these defendants claim as their own the Bheris known as Jongra and Nazir which are said to be in the possession of defendant No. 1 as their mokurrari tenant, and Puti Babu's Bheri, which is said to be in the possession of their tenants defendants Nos. 2 and 3. All the defendants made common cause to resist the plaintiff's claim. The plaintiff's title to Estate No. 2999 is not in dispute, but whether the lands in suit are part of that estate.

4. The Subordinate Judge decreed the suit with costs against defendants Nos. 1 to 4. He declared the plaintiff entitled to the disputed land which is included in Khatian No. 85-1 as part and parcel of Touzi No. 2999, Mahal Ushpara, and awarding him possession of the same through his tenant the 1st defendant, who by his purchase of the tenure was said in the decree to stand in the place of Gokulmoni. Rent was awarded against him_ at the rate stipulated in the lease, viz., 12 annas per bigha for all lands found in the defendant No, 1's possession as Gokulraoni's tenure on measurement of 80 cubits to a rasi, a cubit being equal to 18 inches. He then held that if the defendants Nos. 2 and 3 be found on the same system of measurement to be in possession of any portion of the disputed land in excess of what is stated in their lease, they were ordered to pay rent to the plaintiff at the above rate and the defendant No. 1 will get remission to that extent, or to the defendant No. 1. In coming to this conclusion the learned Judge held that the judgment given in a previous suit No. 138 of 1890instituted on the 2nd of July of that year was res judicata. A main question in the present case is what is the boundary between Mouza Gangapur Bagmari and Mouza Tardah. In that suit judgment in which has been held to be res judicata the Court held that the Bidyadhari river in its present condition, which is practically represented by the orange line in the Commissioner's map, is the boundary between the two Mouzas. In the Thak map Gangapur extends westward to the Bidyadhari river. In Suit No. 188 it was decided that the river was still the boundary on a relay of the Thak map and a decree was given accordingly. If the river in its present course is by virtue of the previous decision or in fact the boundary between the two Mouzas, then the judgment of the Subordinate Judge is correct. On appeal to this Court both Fletcher and Smither, JJ., held that in fact the relay of the Thak in Suit No. 138 was incorrect. They held that the river then was and still is to the west of the Thak boundary. Fletcher J., was of opinion that the report and map of the Commissioner prepared in the present case-should be accepted as ,also the red line shown on the Commissioner's map, as the relay of the boundary line from the Revenue Survay map. Smither, J., said he would accept the blue line as recommended by the Commissioner in paragraph 17 of his report. In either case the western boundary of Bagmari is placed well to the east of the present position of the Bidyadhari river, the course of which (both the learned Judges held) has changed. The difference between the judgments of our learned brothers on this point is that the red line is further to the east of the river than the blue line, with the result that (even apart from the question of res judicata) the plaintiff gets less according to Fletcher, J.'a judgment than according to that of Smither, J. The adoption of the blue line gives the defendant No. 4 some 100 highas less than he would get by adopting the red line.

5. In fact the learned Government Pleader who appeared for defendant No. 4 said he was satisfied with Fletcher, J.'s decision except as to Jongra Bheri. But the principal point of difference between our learned brothers is on the question whether the judgment in Suit No. 138 of 1890 was or was not res Judicata, and if so, between what parties to this suit. Smither, J., agreeing with the Subordinate Judge, has held that it is res judicata, holding also that it is so as to 4/5ths of the land and other 1/5th not being represented in that suit. Fletcher, J., was of opinion that it is not res judicata. The result according to the Subordinate Judge is that the plaintiff practically gets all the lands sued for lying to the east of the present position of the Bidyadhari river. According to Fletcher, J.'s judgment the red line shown in the Commissioner's map, being the relay of the western boundary shown in the Revenue map, is the western boundary of the plaintiff's Mouza. It is declared that the plaintiff is entitled to rent at the rate of 12 annas per bigha in respect of lands within that boundary in the possession of defendant No. 1 and the rest of the claim is dismissed. By Smither, J.'s judgment the plaintiff gets a declaration that he is the 16-anna proprietor of all the lands in dispute east of the blue line and (by virtue of the previous decision) of 4/5ths of all the lands between the blue line and the orange line which runs close along the river. The area between the blue and the orange line is said to be 1,865 high as. The plaintiff is held entitled to rent at 12 annas per bigha frnm the 1st defendant in respect of lands held by him. Both the learned Judges also held that the defendants Nos. 2 and 3 are in possession of part of the land called Puti Babu's Bheri and have been holding it before the existence of Gokulmoni's tenure which the defendant No. 1 now represents. They are ordered to pay rent to the Zemindar, the plaintiff, though the rent or rate of rent is not decided in this suit.

6. As there was thus no majority reversing the Subordinate Judge's judgment it stands and is the subject of the present appeal.

7. It is convenient to deal with this complicated appeal firstly as between the rival claimants to the Zemindari title. The issue then is whether the lands in suit belong to the Zemindari of the plaintiff or the Tardah proprietors (defendant No. 4). The points on this head are whether there is a res judicata by virtue of the decision in Suit No. 138 of 1890 as between the plaintiff and the defendant No. 4 (using that expression for the parties represented by him); whether the plaintiff's suit is barred by limitation, and whether his title has been lost by the alleged adverse possession of defendant No. 4 through his tenants defendants Nos. 1, 2 and 3. The second part of the case involves an enquiry whether the defendants Nos. 1, 2 and 3 are his tenants, and at what rate. It is only necessary to discuss the issue between the plaintiff and defendant No. 1, for the former defendants Nos. 2 and 3 have come to an arrangement to which I next refer. Defendant No. 1 contends that he is not bound by the decision in Suit No. 138 to which he was admittedly no party and in which (he contends) he was not represented. If so, his learned Pleader argues that it is open to him both to contend that the plaintiff is not his landlord and that if he is, he holds his tenancy under him on the terms under which he had a lease from the Tardah proprietors.

8. The plaintiff and the defendants Nos. 2 and 3 agree to the following terms:

(1) That the plaintiff will be entitled to, get from the defendants Nos. 2 and 3 to the extent of the plaintiff's interest, as will be determined by the Court in the lands hereinafter mentioned, rent at the rate of 8 annas only per bigha for the 16 annas as provided for in the patta Exhibit A-93, dated the 7th Chait 1233 B.S., for the lands of the part of Pnti Babu's Bheri shown in the Commissioner's map in this case enclosed by a line indicated by the letters A. A. A. in red ink.

(2) That the plaintiff admits that the defendants Nos. 2 and 3 have got a permanent maurasi mokarrari right to the said lands with all the incidents of the lease Exhibit A-93, dated the 7th Chait 1266, B.S.

(3) That each party to this compromise will bear his own costs throughout.

(4) That the map prepared by the Commissioner will form a part of the decree.

9. Dealing with the primary issue of res judicata first, the facts touching Suit No. 138 of 1890 are as follows:

On the 6th April 1870, the Panihat Babus gave a permanent lease (Exhibit B 6) to Jadab Banerjee of three plots of land in Jongra Bheri of 801, 220 and 204 bighas, making in all 725 bighas, at a full rate of 9 annas per bigha. On 3rd December 1870 the same lessors gave another permanent lease to the same lessee of 795 bighas in Nazir's Bheri at a full rate of 8 annas a bigha. Then on 24th February 1879 the co-sharers of Jadab conveyed an 8-annas share in these lands and in another lease of 2,000 bighas, covered by a lease (not produced) of 17th July 1864 in Jongra Khal excluding (it is said) Jongra Bheri, to Gokulmoni Dasi. And on the 11th July 1 S79 Jadab sold the other 8 annas to Gokulmoni, who thus became entitled to the whole 16 annas under the two leases.

10. On the 6th April 1880 Gokulmoni took a permanent lease (Exhibit 7) from the 4/5ths owners of Bagmari Estate No. 145 of two plots of about 600 and 400, in all about 1,000 bighas. The 600 bighas are stated to be in Dasani Bheri and the 400 in Andharia Bheri. As the leases from the Panihati Babuswereof Jongra and Nazir's Bheris, it would seem that the land covered by the lease was in the main at least different, though it is said by the learned Pleader for defendant No. 1 that it is possible that in some respects there may have been overlapping The full rate was 12 annas per bigha, which for 4/dths of 1,000 bighas works out at Rs. 600. It allowed for increase of rent on increased area found on re measurement. On the 15th June 1888 a lease of the 1/5th interest was granted by the Bagmari proprietor, Kaivallya Biswas. The full rent was 150 for the 1/5th interest in the 1,000 bighas. The land was subsequently re-measured and on the 11th April 1881 the 4/5ths Bagmari proprietor gave Gokulmoni a fresh lease in respect of 1,819-1/2 bighas (Exhibit 8). No similar lease was granted by the 1/5th proprietor but rent was paid as though such a lease had been granted. The position at this point is that Gokulmoni possessed a lease hold interest from the Bagmari proprietors of Andharia and Dasani Bheris and of the Jongra and Nazir's Bh eris from the Tardah proprietors purchased from Jadab Banerjee and his co-sharers. Gokulmoni and her husband then executed two mortgages of 31st August 1886 and 26th June 1888. These are not in the paper-book but with consent we have referred to the mortgages which are printed in paper-book of the Appeal No. 83 of 1890. We are not concerned with the later mortgage, which was of Rannar Bheri. The earlier mortgage alone deals with the property in dispute in this suit. It mortgaged lands covered by the lease of the Tardah Babus to the Banerjees, viz., 3,520 bighas which comprised the 2,000, 725 and 795 bighas above mentioned. There was no mortgage of the Andharia and Dasani Bheris. The subject of the lease from the Bagmari proprietors were not mortgaged. The mortgage was to Ram Kristo Naskar, predecessor of defendant No. 1. A mortgage decree was given on 31st December 1890. Four months before this Peary Mohan Roy representing 4/5ths Bagmari proprietors instituted Suit No. 138 of 1890. The way that suit came about was as follows: After the mortgages Peary Mohan Roy, in a suit for rent against Gokulmoni, executed his decree and purchased her jote subject to the right of the mortgagee, if any. Roy, got possession on which one Tasiruddi Mollah put in a claim which was allowed but before he could get possession Roy brought a suit to establish his title, being No. Suit 138 of 1890, in respect of which the issue of res judicata arises. In that suit it was decided that the lands in dispute (which are those in dispute now) were in the estate of the present plaintiff. Subsequently Ram Kristo Naskar executed the mortgage decree. Five plots covered by the first mortgage, were sold, viz., plots No. 3 (part of Jongra) and No. 5 (Nazir) to one Permeshwar Mal and plots Nos. 1, 2, 4 including the rest of Jocgra Bheri, were purchased by, the mortgagee Ram Kristo Naskar, Parmeshwar re-sold later to Dyal Naskar, with the result that the tenancy title in all the plots is in the first defendant. The conveyance by Parmeshwar (Exhibit 55) contains, it is said, an error in so far as the Schedule speaks of rent being payable in respect of Chuk of 220 bighas and 795 bighas being payable to the plaintiff, for these were properties leased by the Tardah Zemindars. This, however, is pot admitted. It appears to be the fact that the defendant No. 1 is in possession of all the lands which gokulmoni held.

11. From the above recital of facts, however, it appears that Andharia and Dasani Bheria covered by the lease given by the Bagmari proprietors were not mortgaged or sold under the mortgage decree. Therefore, defendant No. 1 purports to show documentary title only as regards Jongra and Nazir's Bheris, and he can then only rely on his possession and that of his predecessor since 11th September 1893, when execution was had of the mortgage decree, as regards the rest of the property. However the documents may be, the parties have always proceeded and now proceed on the assumption that the defendant No. 1 has a tenant's title to the whole of Gokulmoni's (sic), whether held under the Tardah or Bagmari proprietors. The plaint so deals with the matter and the learned? Pleader for the plaintiff states, that he admits that defendant No. 1 is the tenant of Gokulmoni's jote held under Estate No. 145 of the Bagmari proprietors.

12. Dealing with the question of identity of parties first, the plaintiff Peary Mohan Roy in Suit No. 138 represented (it is admitted) the present plaintiff as to 4/5ths, the other 1/5th not being represented, and the Roy Chowdhury defendants represented the Tardah estate now represented by defendant No. 4. The present defendants Nos. 1, 2, and 3 were not parties to the Suit No. 138, unless it can be said that defendants Nos. 2 and 3 were represented by their landlords, the Tardah proprietors, and that defendant No. 1 was represented by Gokulmoni Dasi whose properties he subsequently purchased. This point, so far as it affects the 1st defendant, I deal with later.

13. As regards the issue, there can be no question that the same issue was decided in Suit No. 138 as is in contest now. The dispute really ranges round the question whether the parties were litigating under the same title. It is argued for the defendant No. 4 that they were not, because what was in issue was, it is said, not the Zemindari title, but the mokurrari title of Gokulmoni which the then plaintiff had purchased. It may be conceded that the suit might have been framed in this way, in a manner to make it clear that it was a matter of indifference who was the Zemindar and that all that in which the plaintiff was concerned was to establish his right to the mokurrari, under whomsoever it might be held. It may also be that if pleadings are framed to call for a decision on one issue, the fact that others are unnecessarily introduced will not make a decision on such issues res judicata. It is unnecessary to discuss this point here. It is enough to say that on my construction of the pleadings and issues in the suit the Zemindari title was directly put in issue. I need not recapitulate the facts supporting this conclusion set out in Smither, J.'s judgment. There is an obvious reason why the Zemindari title was put in issue, for the plaintiff was both Zemindar and purchaser of the tenure and, therefore, the party entitled to the rent if he established both titles. He was interested to establish both titles and in my opinion sought by his suit to do so. The Panihati Zemindars met him on that issue and the Court decided it. I am of opinion therefore that as between the. rival Zemindars, the plaintiffs and defendant No. 4, the judgment in suit is res judicata.

14. Apart from res judicata the plaintiff has sought to establish his title on the facts to all lands up to the Bidyadhari river on the west or to the orange line on the map, which closely follows it and which he is willing to accept, being the boundary laid down in Suit No. 138. In other words, he contends that the judgment is not only res judicata but is correct as regards the boundary which in that suit was relaid from the survey map. In Suit No. 138 the orange line on the map was found to be the western boundary and this practically corresponds with the Bidyadhari river. If this be the fact it is not necessary to rely on res judicata.

15. The Commissioner, however, was of opinion that Mouza Bagmari as shown in the map prepared in Suit No. 138 was not a correct representation of the Mouza as shown on the Revenue Survey map. He shows the position of the Bidyadhari river according to the survey map. It is not now found, he says, at that place. Its present position is shown. He says that the different positions of the river can only be explained in two ways. Either the river has, since the date of the Revenue Survey, changed its course or it was not properly delineated on the Survey map As regards the latter sup position, it is to be observed that there is a rebuttable presumption of accuracy in favour of the Survey map. Has that presumption been rebutted? Both Fletcher and Smither, JJ., were of opinion that the river had moved westwards. As against this it has been argued that a case of allusion and diluvion was not made, and that this is one of the smaller rivers in which it might not be expected. It is also said that a comparison of the areas show that the Survey map was incorrect. On the other hand it is admitted that the river is still a running stream and there is direct evidence in this case that the river has shifted owing to a 'drying up'. There is no evidence that the river has not changed its course and I am not prepared, therefore, to hold that the revenue map was wrong and that the, relaying of it in Suit No. 138 was correct. I think we should adopt the blue line as the western boundary of Bagmari. The result, therefore, is that, as Smither, J., holds, the plaintiff' is entitled, if his claim is not time-barred and if there has been no adverse possession, to a declaration that he is 16 annas proprietor of all the lands in suit within the blue line and is, by virtue of res judicata as between him and defendant No. 4, the four-fifths proprietor of all the lands between the blue line and the orange line as shown on the map attached.

16. I am of opinion further that the plaintiff's claim is not barred by limitation or lost by adverse possession.

17. It is said that defendant No. 4 has had adverse possession through his tenants. The pleading of this defendant in paragraph 19 of his written statement asserts a title by adverse possession and limitation against the plaintiff. The plaintiff put in issue his title by adverse possession. So also did the defendants Nos. 2 and 3, a matter with which we are not now concerned.

18. But defendants Nos. 1 and 4 did not and cannot do so now. The Subordinate Judge held, as did also the learned Judges of this Court;, that limitation does not arise. I am of the same opinion. The Subordinate Judge says as regards limitation and adverse possession by defendants Nos. 2 and 3:

With regard to Gokulmoni's Chuk there i3 nothing to show that either Gokulmoni or her husband ever paid rent to the Panihati Zemindars and the rent receipts granted to Doyal Kristo by the said Zemindars relate to Moozas in Beotab and Tardah. The challans by which Ram Kristo deposited rent to Sita Nath Das relate to Rannar in Koridanga and Kushdanga. It is not at all likely that the Maharaja, after having secured a decree in respect of the land covered by the Taluk No. 145, would allow any portion of it as shown in the map to be possessed by any third person. The patta granted by the Panihati Babus to Tarak Nath Basu (see Exhibit A-93) is a junglebari lease, in respect of certain jungle lands situated in Taraf Tardah in village Tardah, and the area was 300 bighas. In the Chapperbundi map Exhibit A (233) the jungle portion to the west belonged to several estates including Estates Nos. 172 and 173. The Mouzawari Exhibit E shows that in Bagmari the Estates Nos. 172 and 173 have 194 bighas (quaere acres) 4 cottas 1 chattack of land, while in Gangapur according to Rudd's Robakary there was no land belonging to the said estates and so at the time of Revenue Survey this quantity of land, vie, 194 bighas (qusere acres) and odd was detached from Gangapur Bagmari and assigned to Tardah, Thus on a consideration of the evidence before me I am of opinion that tne defendants were never in possession of any portion of Gangapur Bagmari as appertaining to Tardah, and it is not at all likely that the owners of the adjoining Mouzahs would trespass into any portion of the' plaintiff's Taraf in the face of the Revenue Suiveymap.

19. This question of adverse possession was argued before this Court but has not been gone into in detail in the judgments of the learned Judges of this Court, except that Smither. J., holds that since the decision of Suit No. 138 the Tardah Zemindars have not realised rent from defendants Nos. 1, 2 and 3. Whether the matter was seriously, argued or not the point is clear enough. There is no documentary evidence to show that the Panihati Babus collected rent from Jadab Banerjee or from Gokulmoni. This was also held in the appeal in suit No 138. In that case also the Panihati Zemindars did not produce their account books. It is a strong point that Gokulmoni, who had a lease from the Tardah proprietors, executed a kabuliyat in favour of the plaintiff: thus indicating that she could not get possession from the Tardah proprietors of the lands in suit. The dahhilas produced refer to lands admittedly belonging to Tardah and to Beota. After attorning to the plaintiff, Gokulmoni's possession would not be adverse. The learned Pleader for the defendant No, 4 laid most stress on possession of Puti Babu's Bheri, admitting that the evidence as regards the other Bheris was weak. The rent receipts granted to the Basu defendants by the Panihati Babns relate to 300 bighas only, which, it is contended, are ill-defined: and if (as I find) the title was in the plaintiff, the defendant No. 4 as a trespasser cannot claim the benefit of constructive possession. As regards the Babus themselves, they have never claims any right higher than a tenancy right.

20. According to the Commissioner's report the defendant No. 1 did not appear before him on the spot and the defendants Nos. 2 and 3 did not appear before him at all. They should have pointed out the lands of which they were in possession. They have not identified the Tardah lands. But the Amin says: 'At the time of surveying the lands in suit no one of the defendants pointed out the portions which each defendant claims to be in possession of.' These two objections as regards limitation and adverse possession fail.

21. It was also contended that there was a res judicata against the plaintiff. In judgment in Suit No. 2 of 1906 the decree was by consent for A and B plots (Andharia and Dasani Bheris) and the title to plots C and D (Jongra and Puti Babu's Bheris) was expressly left undecided. In the next Rent Suit No. 14 of 1909 there was no decision on title and the Panihati Zemindars were not parties. Rent was awarded as regards plots A and B whish had been the subject of consent in previous suits. It is admitted by the plaintiff that this judgment is res judicata as regards the amount of rent (12 annas) payable in respect of Andharia and Dasani Bheris. Sat there is no res judicata as regards title.

22. I now pass to the case of the tenants. As regards defendants Nos. 2 and 3, as the Zemindari title of the plaintiff has been declared by the previous portions of this judgment, there will be a decree as against them in the terms agreed upon and previously mentioned.

23. As regards defendant No. 1 he has contended that the former suit, No. 138 was not res judicata either as against defendant No. 4 or himself. The former point I have dealt with. As regards himself he was not a party to the former suit and being a permanent tenant, he was not represented in the former suit by the contending landlords. But it is sought to bind him on the ground that Gokulmoni was a, party and he now holds her interest. But Gokulmoni only represented the equity of redemption and did not, therefore, represent the mortgagee's interest. The fact that subsequently this defendant purchased under his mortgage pari of her interest and later on the rest of her interest from Parmeshwar Mai will not have the effect, in my opinion, of making her at the time of suit No. 138 his (the 1st defendant's) predecessor-in-interest. Nor, in my opinion, have the cases, which hold that a mortgagee of an undivided-share is bound by a decree in a partition suit to which his mortgagor is a party, any bearing on the question before us. The former suit No. 138 was therefore not, in my opinion, res judicata as against the defendant No. 1. What, however, is the effect of this finding? Defendant No. 1 does not claim any interest other than that of a tenant and it has been established in this case, to which he is a party that the plaintiff is his landlord. The re suit is that he must pay rent to the plaintiff, but as the former suit was not res judicata as regards him, the rent and incidents of his tenancy must be determined according as it is found that he is in possession of land covered by the lease given by the Bagmari proprietors to Gokulmoni or not. It is admitted that as regards Dasani and Andharia Bheris he holds these lands of Gokulmoni and must, therefore, pay the rent which she had to pay, that is 12 annas a bigha, and is otherwise governed by her lease. But as regards Jongra and Nazir's Bheris it is not clear what lands in these Bheris are covered by Gokulmoni's lease from the Bagmari proprietors and what are covered by lands leased by her from the Tardah proprietors. There must be an enquiry as to this and rent must be paid at 12 annas for any lands found on enquiry to be covered by the lease of the Bagmari proprietors to Gokulmoni, and as regards these lands any other incidents of her lease will apply. In the case of lands of Jongra and Nazir's Bheris not so covered and formerly held under the Tardaha proprietors the incidents of their lease will govern, and the defendant No. 1 will pay to the plaintiff rent for lands in Nazir's Bheri at 8 annas a bigha and 9 annas rent for lands in Jongra Bheri respectively.

24. There will then be a decree to the following effect: In my opinion the plaintiff has established his title as Zemindar to the whole of the disputed land in suit to the east of the blue line shown on the map and to 4/5ths of the land between the blue and orange lines shown on the map. In respect of the land the title to which is so declared the defendants Nos. 1, 2 and 3 are his permanent Mourasi Mokurrari tenants. The defendants Nos. 2 and 3 will pay rent in respect of Puti Babu's Bheri in their possession at the rate of 8 annas per bigha and the decree, so far as they are concerned, will be in terms of the agreement above stated. The defendant No. 1 will pay rent at the rate of 12 annas per bigha for the Bheris Andharia and Dasani in his possession and will hold the same on the terms of the lease granted by the Bagmari proprietors to Gokulmoni, and as regards Jongra and Nazir's Bheris I would direct an enquiry to determine the question what lands in these Bheris held by the defendant No 1 are comprised within the lease granted by the Bagmari proprietors to Gokulmoni Dasi and what lands, if any, were held under leases from the Tardah proprietors. In respeot of lands in these Bheris found to have been comprised in the Mokurrari lease granted by the Bagmari Zemindars to Gokulmoni Dasi, the defendant No. 1 will pay rent to the plaintiff at the rate of 12 annas per bigha and will hold such lands on the ferms of the lease last mentioned; and in respect of lands, in these Bheris not so found but formerly held under the Tardah Zemindars, the defendant No. 1 will pay rent to the plaintiff at the rate of 8 annas for lands in Wazir's Bheri and 9 annas for lands in Jongra Bheri respectively and shall held the lands under the terms of the lease granted by these Zemindars. Thus the rent payable (whether under the lease from the Tardah proprietors or under Gokulmoni's lease) is 16 annas to the plaintiff in respeot of all land to the east of the blue line and only 4/5ths in respdot of land between the blue and the orange line. The plaintiff's suit beyond what is above declared is dismissed.

25. In the appeal of defendants Nos. 2 and 3 each party will, as agreed, bear his own costs throughout. As regards the appeal of the defendants Nos. 1 and 4 each party will bear the costs of this appeal and of previous hearings, as each party has been to some extent successful in their claims. The cost of the further enquiry here directed will be disposed of on such enquiry by the Judge before whom it is held.

Charles Chitty, J.

26. I agree.

Syed Shamsul Huda, J.

27. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //