RATIRAM AGARWALLA Vs. THAKUR KHITIBHUSAN SINGH AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff's first appeal against the judgment and decree dated 24th February 1953 of Sri S.K. Mohapatra, Subordinate Judge of Sambalpur, arising out of a suit brought by the Plaintiff for declaration of his title and for recovery of possession in respect of the Bhogra lands described in schedules A and B. The acreage involved in Schedule A is 36. 58 acres situated in village Kuruan. Schedule B describes the Bhogra lands situate in village Patrapali with an area 24.80. The Plaintiff also claimed mesne profits for the years 1947 -48, 1948.4 and 1949 -50. He also has prayed for future mesne profits. The Plaintiff's case is that in execution of a decree against Birendra Singh, the cousin of present Defendant No. 1, the Plaintiff purchased Birendra's two annas eight pies interest in the Gountiai rights with appurtenant Bhogra lands. The execution sale had taken place on 16th June 1934. Be took delivery of possession through court in the year' 1936 in respect of his share of -/2/8 pies. The Defendants are the cosharer -Landlords in respect of the Gountiai rights and own -/13/4 pies. Birendra Singh is not a party to the present suit. After taking delivery of possession through court in respect of his purchase -share, the Plaintiff filed a partition case in the year 1936 -37 for partition of his/ -/2/8 pies interest and for separate possession in respect of the Bhogra lands in suit. This was in respect of village Kuruan. Subsequently he also filed another case for the same relief in respect of the second village of Patrapali. He obtained the reliefs claimed from the revenue authorities and bad taken separate possession in respect of the Bhogra lands situate in the two villages, which are now in dispute in the present suit, on 12th December 1933 and 10th April 1944 respectively. It may be noted here, in the year 1939 the Plaintiff brought a money suit for mesne profits in respect of village Kuruan for three years 1936 to 1938 a against the present Defendants and obtained a decree where the mesne profits were ascertained as Rs. 1000/ -. The cause of action alleged by the Plaintiff for bringing the present suit is the forcible dispossession by the present Defendants in July 1945 in respect of village Kuruan and in 1944 in respect of village Patrapali. There is no dispute that the present suit is within time and the Plaintiff's claim for mesne profits for three years is also within time. It is Defendant No. 6 alone who contested the suit and the other Defendants was ex parte. Defendant No. 6's plea is that he was a minor during the previous proceedings and as such the results of the previous proceedings are not binding on him. This plea has been negatived by the finding of the learned Subordinate Judge and is not challenged before us. Defendant No. 6 had also taken up the plea that the Plaintiff had never obtained Khas possession of the properties in dispute and he never took possession in termination of the proceedings by the revenue authorities where the Plaintiff sued for partition. His main plea was that the Plaintiff was not entitled to Khas possession neither was he entitled to mesne profits as the disputed lands are Sir lands and they are not transferable under Section 45 of the Central Provinces Tenancy Act. On transfer of the Gountiai rights, according to the defence, Birendra had acquired occupancy rights under the provisions of the aforesaid section.

(2.) THE learned Subordinate Judge found that the Plaintiff had in fact purchased two and as eight pies interest of Birendra Singh in execution sale. He had further found that the present Defendant No. 6 being a party to the previous proceedings was bound by the previous proceedings started by the Plaintiff for partition and separate possession in respect of the Bhogra lands which are now in dispute. The learned Subordinate Judge further found that the Plaintiff on the termination of the partition proceedings had taken separate possession through revenue authorities of Bhogra lands of both the villages. But nevertheless he has dismissed the Plaintiff's prayer for Khas possession accepting the contention of the defence based upon the provisions of Section 45 of the Central Provinces Tenancy Act that the Plaintiff is not entitled to Khas possession as Birendra had acquired occupancy rights on the cessation of his Gountiai rightist may be worthwhile to mention the inconsistent position arising from the decree itself that he has allowed the Plaintiff mesne profits for the three years claimed while he has dismissed the Plaintiff 's suit for. Khas possession by ejecting the Defendants from the disputed lands.

(3.) THE question remains whether the lands in dispute were recorded as bhogra lands in the current settlement as contemplated under Section 4 -A of the Central Provinces Land Revenue Act. The current settlement contemplated under the above section refers to Nethersole's Settlement. The learned Subordinate Judge accepts the position and there cannot possibly be any dispute over that and the position is clear by reference to the records which have been filed that in fact the lands in dispute were recorded at bhogra in the Nethersofe's Settlement.