KSHIRODE NARAIN BHUNIA Vs. TAMIRUDDIN SHEIK

JUDGEMENT

(1.) These two appeals are at the instance of Defendant No. 1 Kshirode Warain Bhunia and they arise out of two suits instituted by the Plaintiffs for a declaration of their accupancy right under the lotdar Bankim Chandra Chakravartty Defendant No. 2 and for confirmation, or in the alternative, for recovery, of possession of certain lands in the Sundarban area, is the series of transactions by which the Plaintiffs acquired their title to the land in dispute are not challenged before us, it unnecessary to recite them in detail.

(2.) Broadly stated, the Plaintiffs' case in both the suits is that they are occupancy ruiydts in respect of the lands in dispute which are situate in a temporarily settled estate; that sometime in the year 1930 the embankments surrounding the lands were swept away by high floods on account of the failure of the lotdar, Bankim Chandra Chakravartty to keep them in proper repairs with the result that the entire area was flooded with saline water rendering it unfit for cultivation and the Plaintiffs had to leave the lands against their wishes without any intention of abandoning their rights; that sometime in 1935-36 the Plaintiffs came back and started repairing the embankments and began cultivation after 2 or 3 years; that during the last provisional settlement operation Defendant No. 1 asserted that he had taken settlement of the lands from the lotdar on the footing that the lands were it his khas possession, although in point of fact the Plaintiffs has never abandoned their holdings; that at the time of the provisional survey the names of the Plaintiffs were recorded as tenants by the settlement officer but Defendant No. 1 took an appeal against the decision of the settlement officer and the Director of Land Records, by an order, dated May 15, 1948, reversed the order on the settlement officer, holding, inter alia, that Defendant No. was the tenant under the lotdar and that the Plaintiffs has abandoned their holdings and directed that the name o Defendant No. 1 should be recorded as a tenant under the lotdar that the decision of the Director of Land Records which was illegal and without jurisdiction had cast a cloud upon the Plaintiffs' title for which the Plaintiffs instituted the two suit for the reliefs mentioned above.

(3.) Second Appeal No. 264 of 1948 arises out of Title Suit No. 8 of 1944 which was instituted on October 23, 1944 and second appeal No. 265 of 1948 arises out of Title Suit No. 87 of 194 which was instituted on November 4, 1944.