BANSHIDHAR JASH Vs. MAHARAJ SHRI SOMESH CHANDRA NANDY

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of title and recovery of possession. In the plaint, there was also a prayer for mesne profits, but, during the pendency of the proceedings in the trial court, the said prayer was withdrawn. The Plaintiff, who claims recovery of possession, is the zemindar or proprietor in respect of the disputed land. Under the Plaintiff, according to the plaint, there were certain service tenants or service-tenure holders Krishnahari Josh and others. Against these service tenure holders, the Plaintiff brought a suit, in the year 1939, for resumption of their service-tenure and the suit was decreed up to this Court. According to the Plaintiff, he, thereafter, took khas possession of the disputed property through court and, subsequent to the taking of such possession, the suit land was let out in Bhag to the present Defendant No. 2 for the year 1354 B.S. and after the expiry of the said year, the said land was settled with one Rajnarayan Hazra. When, however, the above settlement holder Rajnarayan went to take possession, he was resisted by the present Defendants, namely, Defendants Nos. 1 and 2, in collusion, as alleged by the Plaintiff, with the ex-service tenants. Consequently, the present suit had to be brought on August 3, 1949. In the plaint, it was stated further that the father of present Defendant No. 2, Nemai Karak, was recorded in respect of the disputed land as 'occupant' under the service-tenants Krishnahari Josh and others. The said Nemai Karak wasm not impleaded in the above resumption suit. Defendant No. 2 was claiming to be a transferee in respect of a part of the suit land, comprising 54 decimals from Defendant No. 2. According to the Plaintiff, neither Defendant No. 1 nor Defendant No. 2 had any valid right in respect of the suit land, not, in any event, against the Plaintiff, and, accordingly, the Plaintiff was claiming recovery of possession of the same after declaration of his title thereto.

(2.) The suit was contested by both the Defendants and their defence, in substance, was a denial of the Plaintiff's story of delivery of possession, as made in the plaint, and also his story of Bhag settlement to Defendant No. 2. The Defendants claim to be occupancy raiyats in respect of the disputed land and, on this point, their case was of a two-fold character. They first asserted that the suit land was no part of the Plaintiff's Mal assets or the Mal assets the Plaintiff's zemindary and did not appertain to any service tenure under him but that the superior interest therein belonged to certain Nishkardars, Balika Sundari and others, under whom they (the Defendants) were the tenants thereof and they (the Defendants) had occupancy rights therein. In the second place, they asserted that, even though the suit land might be within the Plaintiff's Mal assets and within the service-tenure of Krislmahari Josh and others under the Plaintiff, the Defendants or the father of Defendant No. 2, Nemai Karak, had been holding the disputed land under the said service-tenure holders under a settlement and had been actually cultivating the same for long over 12 years and had thereby acquired occupancy rights therein, with the result that both Defendant No. 1 and Defendant No. 2 were occupancy raiyats in respect of the disputed land. They accordingly, contended that the Plaintiff was not entitled to get khas possession of the disputed land even if he might be held entitled to a declaration of title, that is title in the superior interest in respect of the same.

(3.) The suit was decreed by both the courts below, overruling in substance, or materially speaking all the defences, raised by the Defendants. The courts below found concurrently that Balika Sundari the alleged landlord of the Defendants in respect of the disputed land, had not been proved to have had, at any time, any interest in the said land. They further found that the suit land was compromised in C.S. khatian No. 783 as alleged in the plaint, under C.S. khatian No. 782 which was the khatian of the service-tenure holders Krislmahari Josh and others under the Plaintiff. There was no dispute also that in the year 1939, a suit was brought against the said service-tenure holders and a decree was obtained for resumption or recovery of khas possession of the suit land against them by the Plaintiff up to this Court. The trial court further accepted the Plaintiff's case that he had obtained delivery of actual khas possession in execution of the aforesaid decree and that, thereafter he settled the disputed land, with Defendant No. 2 in Bhag for the year 1354 B.S. and that the said Bhag settlement terminated with the expiry of the said year. Although this finding does not appear to have been accepted by the lower appellate court, the learned Subordinate Judge also found in favour of the Plaintiff and against the Defendants on the question of the Defendants' claim of occupancy right in respect of the disputed land. On this part of the case, the reasoning of the two courts below was that, in view of Section 181 of the Bengal Tenancy Act, the Defendants, holding or, claiming to hold, under service tenure holders, could not claim any occupancy right as against the zemindar or proprietor or the superior interest holder, whatever claim they might urge or successfully urge against the service-tenure holders themselves who were their (immediate) landlords.