NAKARI ROY Vs. UPANANDA KARATI

JUDGEMENT

(1.) The plaintiffs who are the appellants to this Court brought a suit for declaration of title to and recovery of possession of a ditch (doba), recorded as O.S. Plot No. 1616 of the settlement records of 1937. Their case was that this plot appretained to a jama of Rs. 16-13-3 comprising 8 bighas and 2 cottas of land, which at one time was a jama of Rs. 19-14-6 comprising 9 bighas aad 19 cottas of land. The larger tenancy originally belonged to one Sashi Bhusan Hazra who made a gift thereof to his nephew Anukul and plaintiff 1 and the father of plaintiffs 2 and 3 acquired the lands by two purchases, one from Anukul and the other from the widow of Anukul s brother Sucharan who also claimed an interest in the gift. Thereafter the plaintiffs settled the lands in bhag with two persons named Umesh and Dayal and on a dispute having arisen with them, compromised it by relinquishing in their favour an area of 1 bigha and 17 cottas of land. The reduction of the original jama to its present proportions is explained by that circumstance, The plaintiffs alleged that the record of rights wrongly recorded plot No. 1616 as held in tenancy right by the defendants and that the defendants were wrongfully in possession thereof.

(2.) The defence of the defendants was that the plaintiffs had the superior interest in the land as claimed by them, bat they were only entitled to recover fair and enquitable rent and were not entitled to khas possession. According to them, Plot No. 1616 appertained to a tenancy of five plots which one Ramchandra Karati, a predecessor of theirs, held under Sashi Bhusan Hazra. The superior interest of Sashi Bhusan Hazra had since been acquired by the plaintiff and the tenancy right of Ram Chandra Karati had devolved upon the defendants. It was farther pleaded that the defendants or their predecessors in interest had been in possession of the plot for upwards of 12 years and had thereby acquired a tenancy right therein.

(3.) The trial Court decreed the plaintiff s suit. It held that Plot No. 1616 appertained to the jama of Rs. 16-13-3 as alleged by the plaintiffs and did not appertain to a jama of five plots as alleged by the defendants; that the defendants were in possession since 1932 but had not been in possession before; that their possession was not possession in the capacity of tenants; that accordingly the plot was not assessable to rent, as recorded in the record of rights; and lastly that the record of rights was wrong and should be corrected.