SEHOPANIT SHAH Vs. CHABILAL TEWARI AND OTHERS

JUDGEMENT

(1.) THIS is an appeal from the judgment and decree of the learned Additional Sub -Judge, A.V.D., dated the 31st May, 1945 by which the order of the Munsiff, Nowgong, dated the 15th September 1944 decreeing plaintiff's suit was reversed and the suit dismissed. The plaintiff has appealed to this Court.

(2.) PLAINTIFF , appellant claimed to have purchased about 73 bighas of land appertaining to patta No. 11 from Shahasram by a registered sale deed dated 15th November 1940 for Rs. 500 which formed the sale consideration. His case was that he got delivery of possession from his vendor. According to him, out of the land purchased by him, 5 puras of culturable land were settled on Ramani Mohan Namasudra and he got a kabuliyat from him on 7th Baisakh 1848 B.S. On the same day another 8 puras of culturable land were said to have been settled on Binode Ram Namasudra. He also executed a kabuliyat in plaintiff's favour. In the kabuliyats it is stated that the land which formed the subject matter of two settlements was in the possession of the plaintiff. The recital reproduced below appears in both the documents:

(3.) PLAINTIFF 's case was that the land in suit belonged to Shahasram and he was in enjoyment and possession thereof. There is no suggestion in para 3 of the plaint that he possessed the land through tenants. In para 3, it was expressly stated that he sold the lands to the plaintiff and delivered possession to him and that the plaintiff after taking possession of the lands had been exercising his sights as an owner. Even in this para there is no suggestion that there were any tenants in occupation of the land at the time of Bale and they attorned to the plaintiff. In para 4, it was alleged by the plaintiff that out of the Bait land he settled 19 bighas on defendant 8 and 20 bighas on defendant 4 on 7th Baisakh, 1848 R.S. and got kabuliyat from them. The allegations in paras 2 to 4 of the plaint read with the kabuliyats would show that plaintiff's case was that at the time of the settlement of the culturable lands on defendants 8 and 4, he delivered possession of the lands settled on them. Plaintiff denied title of defendants which was claimed on the basis of an oral Bale. He treated them as trespassers and claimed declaration of title and possession.