CHUTAHRU BHAGAT Vs. HIALAL SAH

JUDGEMENT

(1.) This is a second appeal by the defendants first party from the decision of the learned Subordinate Judge of Purnea dated nth July 1948, modifying the decision of the Additional Munsif of Purnea dated 28th June 1916, in a suit for a declaration of title and recovery of possession in respect of some lands comprised in plot No. 1248. The short facts are the following: Two plots, namely, plot No. 1238 with an area of .91 acres and plot No. 1248 with an area of 4.57 acres appertained to khata No. 207 of village Dharahra, Against the khata or holding in question the name of one Lalit Dhangar was recorded as gair dakhalkar for two years. The tenure-holder under whom the laud was held was one Gulab Missir. It was the admitted cage of the parties that Lalit abandoned the holding, and the tenure-holder Gulab Misair came in possession on the death of Gulab Misair his son, Ramji Missir, came in possession. This Ramji Misair settled portions of plot No. 1248 with different persons. Some portion was settled with one Lalit Dhangar; another portion, the exact area of which is in dispute, was settled with one Prem Singh. The plaintiffs-respondents alleged that an area of 1 bigba 18 kathas 7 dhurs out of plot No. 1248 was settled with them by Ramji Missir by means of a parwana fated 12th Agban 1329 Fasli. It appears that subsequently the interest of Ramji Missir was sold and purchased by one Syed Asad Reza, mutwalli of the waqf property of one Rani Quamarunnissa Begum Nageshwar Singh, nephew and heir of Prem Singh, sold his interest of the portion settled with Prem Singh out of plot No. 1248 to defendant 2 Girwar Narain Bhagat on 10th August 1934. The present appellants based their title on that purchase, and their case was that what was settled with Prem Singh out of plot Mo. 1248' was not 2.10 acres only but a much larger area, namely, 3.61 acres. The case of the plaintiffs-respondents was that the patwari of the waqf estate under the mutwalli Syed Asad Reza came in collusion with Prem Singh and granted rent receipts to Prem Singh in respect of the entire area of plot No. 1248. They further alleged that by the purchase which the appellants had made from Nagesbwar Singh the appellants had acquired no title to more than 8.10 acres settled with Prem Singh. But some time in 1940, that is Pous 1347 Fasli, the appellants who are men of influence, had dispossessed the plaintiffs, respondents from part of the land Which had been settled with the plaintiffs-respondents. Originally, the area from which the plaintiffs-respondents were alleged to have been dispossessed was given to be 10 kathas and odd. Subsequently, after the report of a pleader commissioner who was deputed to measure the land on the spot, an amendment was made by which the plaintiff-respondents alleged that they had been dispossessed from .69 acres out of the area settled with them.

(2.) The learned Munsif who dealt with the suit in the first instance held that the plaintiffs-respondents had established their title with regard to 1 bigha 18 kathas 7 dhurs of land out of plot No. 1248. He did not, however, accept the story of dispossession and gave a decree declaring the title of the plaintiffs-respondents and confirming their possession over the entire area of 1 bigha 18 kathas 7 dhurs. He further directed that the plaintiffs-respondents would be entitled to construct a ridge or some line of demarcation to avoid any dispute in future. The learned Subordinate Judge in appeal affirmed the decision of the learned Munsif on the question of title. He held that the plaintiffs-respondents had proved their settlement and their title based on that settlement with regard to 1 bigha is kathas 7 dhurs out of plot No. 1248. He further held that what was settled with Prem Singh was 2.10 acres only and not 3.61 acres. He also found that the plaintiffs-respondents had been dispossessed from portion of the land settled with them, and on the basis of the report of the pleader commissioner he held that the area from which the plaintiffs-respondents had been dispossessed was .69 acres towards the south west of the land settled with the plaintiffs-respondents. He passed a decree affirming the decision of the learned Munsif but modifying it in a way indicated below. He stated as follows:

(3.) In the view which I have taken of this appeal, it would be inadvisable for me to express any opinion on the question of title. The point which has been urged before me on behalf of the appellants is that they were greatly prejudiced by the failure of the plaintiffs, respondents to indicate clearly by means of boundaries etc. the identity of the particular portion of plot No. 1248 which the plaintiffs-respondents were claiming in the suit. Learned counsel for the appellants has drawn my attention to Order 7, Rule 3 and to Order 20, Rule 9, Civil P C. Order 7, Rule 3 states that where the subject-matter of the suit is immoveable property the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Order 20, Rule 9 is in similar terms and states that where the subject-matter of the suit is immoveable property, the decree shall contain a description of such property sufficient to identify the same. In the case before me, the plain tiffs-respondents were claiming a portion of plot No. 1248. It is true that they did mention the plot number in the plaint. They also gave the area which they were claiming, namely, 1 bigha 18 kathas 7 dhurs. In a schedule appended to the plaint it was stated that the portion which had been encroached on was from the southern side, but nowhere was it stated in the plaint from which side of the plot the settlement of 1 bigha 18 kathas 7 dhurs was made in favour of the plaintiffs respondents. It is to be observed that the area of plot No. 1248 is 4 acres and odd. It is also to be observed that Ramji Missir had settled portions of this plot with three different sets of persons, the settlement in favour of Prem Singh and Lalit Dhangar being earlier in point of time than the settlement in favour of the plaintiffs-respondents. It was, therefore, very necessary to fix the identity of the particular portion which the plaintiffs-respondents were claiming as having been settled with them. Learned counsel for the plaintiffs-respondents has drawn my attention to a petition which his clients had filed on 24th January 1946. In that petition a reference was made to an earlier demarcation of the different portions of the plot by a Collectorate amin in a demarcation proceeding. It was alleged in that petition that the portion of plot No. 1248, which is south of plot No. 1249, marked 1 in plot No. 1248 as shown in a map attached to the petition along with the portion marked 2 in plot No. 1218 was the area of the plaintiffs' land measuring 1 bigha 18 kathas 7 dhurs. It was further alleged that the plaintiffs-respondents had been dispossessed from the area marked 2 in the map. The plaintiffs respondents wanted that the said map of the Collectorate amin should form part of the plaint 90 as to fix the identity of the lands which the plaintiffs respondents were claiming. Unfortunately, however, no order was passed on this petition. Order No. 45, dated 24th January 1946, which deals with this petition merely states that a pleader commissioner be appointed to measure the land on the spot. It seems to me that the points which the appellants have taken, namely, that the plaint did not clearly indicate the identity of the lands which the plaintiffs-respondents were claiming, and that the present appellants were prejudiced in their defence have some substance.