HAJI MUMTAJUDDIN Vs. DEBENDRA NATH SEAL

JUDGEMENT

(1.) Two questions have arisen for our decision in this appeal, first, what is the true location and identity of the land purchased by plaintiff respondent, Debendra Nath Seal, at a collectorate sale held on 22-12-1931 for arrears of land revenue and secondly, whether the claim of the plaintiff respondent is barred by limitation or adverse possession. These questions have arisen on the following allegations of the plaintiff in his plaint,

(2.) One David Alexander Wills was the owner of a holding in Dihi Panchannagram, Division 5, Sub-division J, of 24 Parganas Collectorate bearing No. 87 of Smart's survey and No. 104 of the old survey and also bearing a Sadar Jama of -/6/7 pies. The holding was sold through the collectorate of 24 Parganas for arrears of land revenue and purchased by the plaintiff respondent who obtained a sale certificate. The plaintiff attempted to take delivery of possession through the collectorate but was resisted by one Pannalal Rajak and others on the ground that the land really purchased by the plaintiff was a different land and the land of which the plaintiff wanted to take possession was really holding No. 105 and not 104 of the old survey. Thereafter the plaintiff got his name mutated in the collectorate and also applied for demarcation of his land under the provisions of the Bengal Survey Act and it was found by the surveyor after relayment of several maps in presence of the interested parties that holding No, 87 of Smart's did not correspond with holding No. 104 of the old survey, but it corresponded with a part of old rent free holding No. 105 and the old holding No. 104 corresponded with a part of Smart's holding No. 140. This survey case was disposed of on 14-2-1944, but the principal defendants Nos. 1 and 2 wrongfully kept the plaintiff out of possession of the disputed land and so he instituted the suit for declaration of his title to the disputed land, for recovery of Khas possession thereof and of mesne profits.

(3.) The suit was contested by defendant No. 1. His defence in the main was that the plaintiff having purchased holding No. 87 of Smart's survey he is not entitled to claim any land outside that holding. The defendant also pleaded limitation.