TIRTHA NAIK Vs. LAL SADANANDA SINGH

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against the judgment of the District Judge, reversing the judgment of the Subordinate Judge, Sambalpur. The plaintiffs are the descendants of one Nidhi Gountia, who was admittedly the Gountia of the village of Kermali within the ambit of the defendant's zamindari of Borasambar. The plaintiffs' case is that Nidhi Gountia held the village on a Thikadari tenure and that by way of a family arrangement had allotted the 'sir' and 'bhogra' lands of the village to his sons; that the lands described in Schedule B of the plaint had been allotted to his son, Maheswar; and the lands described in Schedule C had similarly been allotted to his son, Gangadhar. Plaintiffs 1 and 2 and plaintiffs 3 -6 are, respectively, the descendants of Maheswar and Gangadhar. The lands described in Sch. D were, according to the plaintiffs, allotted to three other sons of Nidhi, who are not concerned with the present dispute, and those properties are not in suit. The plaintiffs' case is that the grant of the village in Thikadari right was made in perpetuity to an ancestor of the plaintiffs and was the family property of the plaintiffs. On Nidhi's death, his eldest son, Gangadhar, was appointed Gountia and, on his death, his son Ratnakar, succeeded to the office of the Gountia. Iswar, son of Ratnakar, was the Gountia against whom the first defendant, the zamindar, brought a suit in ejectment for non -payment of rent, and obtained a decree. In execution of this decree the zamindar ejected the Thikadar and took possession of the village, including the lands in suit. The plaintiffs, therefore, filed a suit for being restored to possession of the suit lands by ejecting the defendant therefrom. The following genealogical tree explains the relationship of the parties.

(2.) THE defendant -zamindar contested the suit and averred that the village was held by the Thikadars on periodical leases of five years duration, and that the Thikadar was liable to ejectment for non -payment of Thika Jamma, by custom and by the terms of the lease under which he held. He further denied the alleged partition Of the lands between Nidhi and his sons, and it is his case that any such arrangement, even if true, is not binding on the zamindar and would come to an end with the termination of the lease.

(3.) ON appeal to the Court of the District Judge, these findings were reversed on the ground that the incidents of the tenure relied upon by the trial Court were equally consistent with the tenure being a terminable and periodical lease of a limited duration, and the learned District Judge came to the finding that the plaintiffs had failed to show that the village was settled in perpetuity with Nidhi or his ancestors. In arriving at this finding the Court of appeal was largely, if not solely, influenced by the Settlement Report and an order of Mr. Priest, who was the Settlement Officer in charge of the zamindaries at that time, and further held that the plaintiffs had failed to prove that there was any nucleus of joint family property, with which Nidhi had obtained settlement of the village. The findings of the trial Court were therefore, set aside and the plaintiffs' suit was ordered to be dismissed. It is against this judgment that the plaintiffs have now come up in second appeal.