SUBA DUSADH Vs. SHIVA PRASAD

JUDGEMENT

(1.) This is a defendant's appeal against the judgment and decree of the learned Additional Subordinate Judge, 4th Court, Patna, dated 16th September 1949, by which he affirmed a judgment and decree of the Munsif, 1st Court, Patna, dated 16th February 1949, decreeing the plaintiffs' suit.

(2.) The plaintiffs are brothers and their suit was for a declaration of their title and for recovery of possession of certain kasht lands situated in villages Rampur Ismail, Nagwan and Bahpura having an area of 4.40 acres as described in the plaint. The plaintiffs also claimed mesne profits. There was a further relief sought by them, namely, for a declaration that they are entitled to perform the duty of a road-chaukidar, which office they alleged to be hereditary in their family, as the kasht lands, which are the subject-matter of the suit, were granted to their ancestor in lieu of his services as a road-chaukidar.

(3.) The lands have been recorded in the survey khatian as "jagir obakrahi" in the name of one Chaitu Dusadh who was the grandfather of the plaintiffs'. Chaitu Dusadh died in Ashin 1326 Fasli and than, according to the plaintiffs Dharkheli Dusadh, the son of Chaitu Dusadh worked as a road-chaukidar and held the lands until his death in Chait 1336 Fasli The plaintiffs are the sons of Dhurkheli Dusadh and at the time of the death of Dharkheli Dusadh plaintiff 1 was a minor, aged about 5 years; plaintiff 2 was born six months after the death of Dhurkheli Dusadh. It is then the case of the plaintiffs that as plaintiff 1, being a small child at the time of the death of his father Dhurkheli Duaadh, could not succeed him on his death as the road chaukidar, one Feku Dusadh, a brother of Chaitu Dusadh, became the road-chaukidar and as such was in possession of the lands in suit. When Feku Dusadh died the plaintiffs were still minors. Hence the plaintiffs' mother entered into an arrangement with one Falakdhari Dusadh to work as the road-chaukidar in place of the plaintiffs and to hold the lands in suit as a bataidar. Patakdhari Dueadh died in 1337 Fasli and then the plaintiffs' mother entered into a similar arrangement with the defendant Suba Dusadh, a brother of Palakdbari Dusadh, to officiate as the road-chaukidar and cultivate the lauds on the same terms as a bataidar, and he divided the produce of the lands making over half to the plaintiffs' mother.