SUBODH GOPAL BOSE Vs. KHAIRUNNESSA BAI

JUDGEMENT

(1.) The only dispute which falls to be decided in this appeal is whether the plaintiff whose title has been declared by the Trial Court is entitled to recover joint possession of the property in suit.

(2.) The subject-matter of the present litigation is certain premises in Alipur in the southern part of Calcutta. The plaintiff appellant claims that he had purchased at a revenue sale touzi No. 6 of the Collectorate of 24-Parganas in Jan., 1986, in sixteen annas share. He is emitted to have all the lands included within that touzi free from all incumbrances with the right to annul all tenures as also other interest which are not protected under any one of the exceptions detailed in section 37 of the Bengal Land Revenue Sates Act, 1859, (Act XI of 1859). The plaintiff claims that the land in suit appertains in part to Touzi No. 6 aforesaid and the defendant is a trespasser in respect of that portion of the premises which falls within the said touzi; the interest of the defendant is an in cumbrance. Notice is alleged to have been given, and the defendant not having allowed the plaintiff joint possession, the present suit had to be filed.

(3.) The defence in the main was that no portion of the plot in dispute was covered by Touzi No. 6. The defendant had purchased in 1919 the interest of one Ramesh Chandra Sen in 3 bighas 11 cottas and odd of the premises in dispute and had subsequently purchased an additional area from the Calcutta Corporation out of the surplus lands put up for sale. The defendant claimed that even if it be found that the land in suit appertained partly to touzi No. 6, the land had been held in permanent right at a fixed rent from before the Permanent Settlement, or in any event, before the settlement of touzi No. 6 which had taken place about 1882. Even if it be found that the plaintiff had acquired an interest in touzi No. 6 at a revenue sale the interest of the plaintiff in the land in suit was a fractional one, intermixed and intermingled with such fractional shares of other co-sharer proprietors of different other touzis and the plaintiff was not entitled to annul any interest in one of such fractional touzis. Alternatively, it was claimed that the right of the defendant was protected under the First, Second and Fourth exceptions mentioned in section 37 of the Bengal Land Revenue Sales Act, 1859. The defendant stated, inter alia, that immediately after her purchase she had put up very substantial buildings on the plot and for about fifteen years she had been occupying the said premises with the knowledge of the then proprietor of touzi No. 6 from before the said touzi was put up to sale for recovery of arrears of revenue.