BASMATTIA MALAHIN Vs. KAILASH CHANDRA SINGH

JUDGEMENT

(1.) This is a second appeal by defendant 1st party. The suit out of which the appeal has arisen was a suit for a declaration of title and confirmation of possession, or in the alternative recovery of possession of two bighas 8 kathas and 19 dhurs out of plot No. 1233 of khata No. 12 of village Dafapur alias Ismailpur bearing touzi No. 10142. The case of the plain, tiffs-respondents was that the disputed land was bakasht land of the malik. The old touzi NO. of the village was 1070, and in that touzi one Harihar Prasad Singh had one anna five dams interest. The Manjauli concern, an indigo planting concern, was the other co-sharer. It is not in dispute that the interest of Harihar Prasad Singh to the extent of one anna and five dams was in thika of the Manjauli concern. In the village there was a large area of bakasht lands. Harihar Prasad Singh executed certain mortgages with regard to his interest in 1914 and 1915. In 1921 and in 1922, Harihar Prasad Singh executed two mortgages in favour of the plaintiffs-respondents by which the earlier mortgages were to be paid off. On the basis of the said two mortgages the plaintiffs respondents instituted two suit in 1929. The suits were decreed in 1934, and in execution of the decree the property mortgaged was sold including the bakasht lands which fell to the share of Harihar Prasad Singh. The sale took place on 19-11-1940, and delivery of possession was taken on 7-8-1941. When the mortgage suits were pending there was a partition, and the interest of Harihar Prasad Singh was carved into a separate new touzi bearing No. 10142. It is not in dispute that the disputed land was part of the bakasht lands allotted to Harihar Prasad Singh by the aforesaid partition. The case of the plaintiffs-respondents was that they came in possession of the disputed land after the purchase and delivery of possession referred to above. There was an interference with their possession in December 1942, and hence the suit for a declaration of their title and confirmation of possession, or in the alter. native recovery of possession.

(2.) The defence of the present appellant was that the disputed land was settled with her father by the Manjauli concern some thirty years ago, and her father remained in possession on payment of rent to the Manjauli concern. After the death of her father the appellant remained in possession on payment of rent to the Manjauli concern. During the pendency of the mortgage action by the plaintiffs-respondents the interest of Harihar Prasad Singh was sold in favour of the defendants second party in execution of a money decree. The defendants second party got possession of the proprietary interest of Harihar Prasad Singh from the thikadar, the Manjauli concern, and the defendants second party also recognised the appellant as a tenant in respect of the lands and granted receipts for payment of rent. The appellant claimed that she had acquired a right of occupancy in the lands and was not, therefore, liable to be ejected.

(3.) The learned Munsif, who dealt with the suit in the first instance, held that there was a bona fide settlement in favour of the appellant, and the plaintiffs-respondents were entitled to receive the rent only but were not entitled to eject the appellant. On that finding he dismissed the suit. The learned Subordinate Judge, who heard the appeal, found that there was a temporary settlement in favour of the appellant's father by the Manjauli concern, but accepted the contention made on behalf of the plaintiffs respondents to the effect that the settlement made by the Manjauli concern could not enure beyond the period of the thika and that the Manjauli concern could not by its action bind the lessor. In that view of the matter, the learned Subordinate Judge held that the appellant had not acquired any permanent occupancy right and was, therefore, liable to be ejected by the plaintiffs respondents who had acquired the interest of Harihar Prasad Singh by the purchase in execution of their mortgage decree.