KRUSHNA CHANDRA Vs. HEMAMANI BISWAL

JUDGEMENT

(1.) THE appellant in this court was the plaintiff who sued for title and possession in respect of 13 decimals of land with a house standing thereon. His suit was decreed in the trial court, but he lost in the lower appellate court and has, therefore, come in second appeal.

(2.) ACCORDING to the plaintiff, one Gopinath Mohapatra had three sons, namely, Bhagaban, Madan, and Janardan. Bhagaban's widow was Jema, Radhamani happened to be the widow of Madan and the plaintiff is the son of Janardan. These three brothers had become separate during their lifetime and were in separate enjoyment of the properties allotted to their respective shares. So far as the homestead was concerned they had been enjoying it jointly without any partition by metes and bounds. This house was situated in touzi No. 674. Gopinath, the common ancestor had only one anna interest in the touzi. This interest of one anna had accordingly been divided into three shares among Bhagaban, Madan and Janardan. Before Jemamani's death, she had executed a deed of gift in favour of Padmamani, who was the daughter of Radhamani Radhamani had also executed another deed of gift in respect of her interest in the touzi in favour of Padmamani. Radhamani had two daughters, Padmamani and Indramani. One Baburam Biswal had married Padmamani and had lived in the family as an illatem son-in-law. Thus, during the lifetime of Jemamani and Radhamani, Baburam with his wife had come to live in the house and was in possession thereot Padmamani died leaving two daughters, Amba and Laxmi and Baburam married one Hemamani for the second time after the death of his first wife. Hemamani is defendant No. 1. Indramani died leaving behind Hari and Benudhar as the sons. They are defendants 4 and 5. The plaintiff had gone away to Calcutta in connection with service. In the meantime, during his absence, the superior right in the touzi was sold to one Sabitri Dei as early as September. 1920, but the plaintiff was in occupation of the house and the rest of the property as a tenant under Sabitri and other co-sharer landlords. On 16-1-1923, the plaintiff had executed a usufructuary mortgage in favour of Baburam. In 1930, he redeemed the mortgage and came to possession. During this period, behind the back of the plaintiff, Baburam had got himself recorded in the current settlement record of rights. The plaintiff had no occasion to doubt the bona fides of Baburam who was virtually looking after all his properties. The plaintiff upon return from Calcutta possessed the property and after Jemamani's death he inherited the share of Bhagaban as the last surviving reversioner. The defendants 2 to 4 were never in possession of the property. The defendant No. 1 was not entitled to the property, but he applied before the Estates Abolition Authorities for fixation of fair and equitable rent in her name. The plaintiff objected to it. As there was a decision against the plaintiff by the Estates Abolition Collector, the suit was filed. The cause of action of the suit was actually the order of the Estates Abolition Collector dated 18-8-62 by which fair and equitable rent in favour of defendant No. 1 was determined.

(3.) IT is not the case of the plaintiff that the Estates Abolition Collector did not act in conformity with the fundamental principles of judicial procedure. The entire allegation is confined to the fact that he did not find possession on the date of vesting as required under Section 6 of the Estates Abolition Act. The contention raised by Mr. Mohapatra was confined to the point that in the absence of finding of possession on the date of vesting, the Collector under the Act had no jurisdiction to direct fixation of fair and equitable rent. As I have already said, it is difficult to hold on the basis of Ext. J and the background revealed by the appellate order of remand that the Estates Abolition Collector was not alive to the requirement of possession on the date of vesting and had actually not recorded a finding to that effect. Ext. J read as a whole clearly gives the impression of such a finding having been the basis of the ultimate order. I must, therefore, hold that in Ext. J it has been found that the defendant No. 1 who was the applicant in the Rent Fixation case was in possession on the date of vesting. Once that is found, it would follow that the Estates Abolition Collector had jurisdiction to make the order as required under the statute and the only ground of challenge must fail.