RADHA MOHAN SINGH Vs. JIRA KAMKAR

JUDGEMENT

(1.) This is a plaintiff's second appeal who brought a suit for a declaration that the lands described in Schedule I, appended to the plaint belonged to him on the basis of a registered patta granted by the Dumraon Raj in his favour on the 3rd April, 1948. He also prayed for the confirmation, or, in the alternative, recovery of possession of the lame land. His case was that originally one Ganga Dayal Dusadh was given the right to enjoy the usufructs of this land as gorait for giving services to the Dumraon Raj, and, after him it was given to Darpat Dusadh for the same purpose and then to Sarju Dusadh and after him, on resumption by the Dumraon Raj, the same benefit was given to Jira Kamkar, defendant No. 1. He defaulted in rendering service whereupon the Dumraon Raj resumed the land and settled it under the registered instrument with the plaintiff on the 3rd April, 1948, with an annual rental of Rs. 27-6-0 and on receipt of adequate nazrana. There were two sets of defendants. Defendants second party are the mortgagees from the defendants first party, namely, defendant No. 1. His main defence was that about 20 years ago he entered the services of Dumraon Raj and 4 or 5 years thereafter he had taken permanent settlement of this very land from the Dumraon Raj on payment of a salami of Rs. 500 and since then he has been in possession of this land on payment of rent to the Raj and obtaining rent receipts in lieu thereof.

(2.) The trial Court found that the defence case of permanent settlement was not proved and that the plaintiff was in possession on taking settlement from the Dumraon Raj. His possession was confirmed and a decree was passed in his favour. On appeal, the defendant was held to be in possession as a settlee from the Dumraon Raj, as he had pleaded. Against that, the plaintiff came in appeal to this Court in Second Appeal No. 1105 of 1955. The learned Judge, who disposed it of on the 10th September, 1958, set aside the finding of the lower appellate Court as recorded in favour of the defendant and the dismissal of the plaintiff's suit and remanded the whole case for disposal in accordance with law. He held that the view taken by the lower appellate Court about the rent receipts, Exts. A to A/6 marked on behalf of the defendant, was wrong inasmuch as they were not rent receipts but only showed payment of cess. The learned Judge observed as follows:

(3.) After remand, the appellate court's findings were that the defendant No. 1 had failed to prove his alleged settlement; the land was given to him by Dumraon Raj in lieu of remuneration for future service which he had ceased to vender, though he was still coming in possession of the land. Yet, the suit was dismissed because the court held that the landlord having not determined the grant by a notice to the defendant No. 1, did not have any right to settle the land with the plaintiff, as he purported to do, by the registered patta dated the 3rd April, 1948. Against this, the present appeal has been brought by the plaintiff