NABIN SINGH Vs. SUNA SINGH AND ANR.

JUDGEMENT

(1.) PLAINTIFF is the Appellant against the judgment of affirmance in a suit for declaration of title and a further declaration that the order of the Sub -Divisional Officer in Assessment Case No. 24 of 1963 -64 is void and without jurisdiction. The suit land measures 14 mans 6 gunths 5 biswas and 8 gandas and constituted a Jagir called "Topa Paika Jagir". The Plaintiff and Defendant No. 2 are two brothers and their father was a Topa Paika under the ruler, his work being to carry dak and camp equipments. The said Paika whose name was Panda Singh died when Plaintiff and his brother were minors and in accordance with the rule of inheritance of the Topa Paika Jagir, Plaintiff being the eldest son was accepted as Topa Paika and the suit land was recorded in his name, but as he was a minor then, in the Record -of -Rights, name of Defendant No. 1 who was the guardian of the Plaintiff was also noted as guardian. Plaintiff asserted in the plaint that Defendant No. 1 was never his guardian and such recording was illegal According to the assertion in the plaint, on the death of Plaintiff's father, his mother was managing the duties and responsibilities of a Topa Paika through hired labourers. Jagir system on being abolished, the land which was attached to such Jagir was settled with the Jagirdar on certain terms and conditions and accordingly the assessment case bearing No. 24 of 1964 was started in the Court of the S.D.O., Sadar, and the Record -of -Rights was prepared in the name of the Plaintiff by order of the S.D.O. dated 22 -8 -1963, but as Defendant No. 1 was recorded as guardian of the Plaintiff, he filed a petition for reviewing the order of the S.D.O. dated 22 -8 -1963. Ultimately, the S.D.O. made an enquiry and I reported to the Collector for recording the land jointly in the names of Plaintiff, his brother (Defendant No. 2) and Defendant No. 1, which was approved by the Collector on 30 -1 -1964. According to the Plaintiff neither the S.D.O. had any jurisdiction to review his earlier order dated 22 -8 -1963, nor the Collector had any jurisdiction to get the land recorded in the names of Plaintiff and Defendant No. 1. The Plaintiff also asserted that the Plaintiff was all along in possession of the land and Defendant No. 1 never possessed any part of the same. Because of the illegal orders passed by the Collector approving the report of the S.D.O. the Plaintiff filed the present suit for declaration.

(2.) DEFENDANT No. 2 supported the Plaintiff's case in full and it is Defendant No. 1 who contested the suit. According to him one Gopi Singh who is the grand father of Plaintiff and Defendant No. 2 was the Topa Paika and after the death of Gopi Singh, the father of the Plaintiff, namely Panda Singh and father of Defendant No. 1, namely Guru Singh were performing the job of Topa Paika, though Panda Singh was named as Topa Paika. After the death of Panda Singh, Defendant No. 1 performed the duties of Topa Paika till the system was abolished, but so far as the land attached to the Jagir is concerned, both Panda Singh and Guru Singh were enjoying half and half. After the death of Gopi Singh and also after death of Panda Singh, Plaintiff and Defendant No. 1 were enjoying the same extent of Jagir land. According to the defence case, the S.D.O. considered these facts and directed that the land should be shared between both the Plaintiff and Defendant No. 1. The allegation in the plaint to the effect that Plaintiff was all along in possession of the land was denied. Defendant No. 1 also took a plea that the suit was liable to be dismissed under Section 34 of the Specific Relief Act.

(3.) ON appeal, the learned District Judge affirmed the finding to the effect that Defendant No. 1 had been working as Tapa Paika for a considerable period prior to the abolition of the system, although the land stood recorded in the name of Panda Singh, father of the Plaintiff and thereafter in the name 1 of the Plaintiff. The learned District Judge further found that Plaintiff was in possession of only half of the suit land out of the Tapa Paika Jagir land. The learned District Judge further came to the finding that though the land was impartible, in fact, both the Plaintiff and Defendant No. 1 were possessing half and half. On the question of validity of the order of the S.D.O., the learned District Judge found that the earlier order passed by the S.D.O. was one without any enquiry which was in violation of the principles of natural justice and the subsequent order passed on the objection filed by Defendant No. 1 was after due enquiry and must be held to be valid. The learned District Judge also affirmed the conclusion of the Subordinate Judge to the effect that the Civil Court has no jurisdiction to question the settlement of the land made by the Collector. He also affirmed the conclusion with regard to the applicability of Section 34 of the Specific Relief Act and held that the suit was not maintainable in the absence of a prayer for recovery of possession. The learned District Judge also held agreeing with the learned Subordinate Judge that the suit was barred by limitation. Ultimately, the learned District Judge dismissed the appeal. Hence the present second appeal.