RAM NIRANJAN DAS Vs. LOKNATH MANDAL

JUDGEMENT

(1.) This is an appeal by the defendants-first-party. It arises out of a suit for a declaration of title and recovery of possession in respect of 7.50 acres of land equivalent to 11 bighas 14 kathas 15 dhurs. The suit was instituted by fourteen sets of plaintiffs and the lands claimed have been shown in twelve schedules. The lands comprised in schedules Nos. 1 to 9 of the plaint were claimed by the plaintiffs first party to ninth party, respectively; the land of schedule No. 10 was claimed by the plaintiffs tenth, eleventh and twelfth parties; the land of Schedule II was claimed by the plaintiff thirteenth party; and the land of schedule No. 12 was claimed by the plaintiff fourteenth party. The suit was instituted for a declaration and recovery of possession, inasmuch as an order was passed against the plaintiffs by the Criminal Court in a proceeding under Section 145 of the Code of Criminal Procedure. The disputed lands, admittedly, were portions of cadastral survey plots Nog. 29 to 43 and 45. The plaintiffs claimed these schedule lands as aforesaid on the ground that they were portions of the lands held by them under the aforesaid plot numbers comprised in thana No. 40 of village Harnathpur Barari known also as Harnathpur Gan Bhrar. According to the plaintiffs, the defendants' lands, of which they claimed the disputed lands to be portions, were situate in village Harnathpur Taufir. The two villages, although forming part of one tauzi, No. 1323, were separated from each other by a distance of two miles. The area of the village, bearing tauzi No. 40, was 1,046 bighas 2 kathas 13 dhurs. Out of it, 289 bighas and odd were in possession of the tenants at the time of the cadastral survey, and the remaining area of 756 bighas and odd lay in the bed of the river Ganges, and was covered with sand. The area of Harnathpur taufir, tauzi No. 14, was 949.84 acres, out of which 727 acres were in possession of the tenants, while the remaining 220 acres were recorded as gairmazrua. The areas claimed by each set of the plaintiffs have been set out in the schedules to the plaint, and these were recorded, in some cases, as occupancy but generally as gair dakhalkar or non-occupancy raiyati holdings of the ancestors of the plaintiffs. The plaintiff ninth party, however, claimed that he was entitled to Schedule 9 lands on the foot of a settlement by the maliks. The rights of the parties were specified in the manner that the names of the father of the plaintiff-first-party and the grandfather of the plaintiffs second party and third party and maternal grandfather of the plaintiff fourth party and father of the plaintiffs fifth party and sixth party and an aunt of the plaintiff seventh party and the great grandfather of the plaintiff eighth party and father of the plaintiffs tenth to twelfth parties and maternal grandfather of the plaintiff thirteenth party and uncle of the plaintiff fourteenth party were recorded in the cadastral survey khatain as non-occupancy tenants. The ancestors of the plaintiffs first, second, third, fourth, eight to twelfth and fourteenth parties were recorded as occupancy tenants for ten years standing, while the aunt of the plaintiff seventh party was recorded as a non-occupancy tenant for eight years, the maternal grandfather of the plaintiff fourteenth party was recorded as a non-occupancy tenant for five years, and the fathers of the plaintiffs fifth and sixth parties were recorded as non-occupancy tenants for one year. The plaintiffs claimed to have acquired occupancy rights by continuous possession over the lands till the year 1913, the cadastral survey proceedings having taken place in 1902. The further case of the plaintiffs was that village Harnathpur Barari diluviated near about the year 1913; but, before diluvion, the ancestors of the plaintiffs had already perfected their occupancy right over them. The case in respect of the plaintiff ninth party was that the land claimed by him was originally recorded in the name of one Jagrup Lal. Jagrup Lal died issue-less, and hence his holding was abandoned. The landlord came into possession of the land, and, ultimately, settled it with different persons, including the plaintiff ninth party. It is not necessary to set cut the exact area claimed by the plaintiffs, which has been mentioned by the learned Subordinate Judge, who heard the appeal arising out of the judgment of the trial Court, in paragraph 5 of his judgment.

(2.) It was alleged by the plaintiffs that the lands emerged out of water in 1946, and, at first, only, kash, jhauwa, etc. grew over the lands. The lands improved, however, with the deposit of further silt and they became partially fit for cultivation in 1952 and 1953. In the latter year, the plaintiffs grew wheat and gram crops over them and when the crops were ready for harvesting, some of the plaintiffs harvested the crops but the crops were still standing on the lands of the plaintiffs second party and twelfth party, and, when they prepared to begin harvesting, the defendants lodged false information with the police through Laldeo Jha dafadar, who was their man, alleging apprehension of a breach of the peace. Accordingly, a proceeding under Section 144 of the Code of Criminal Procedure was started. In the course of the proceeding, the defendants first party claimed title and possession over the lands, and the defendant second party, who was a friend of the defendants first party, claimed to be bataidar in respect of the disputed lands. The plaintiffs also alleged that the defendant second party belonged to village Lagma within mufassil Police Station of Mon-ghyr, which is at a distance of ten miles from the disputed lands.

(3.) After local inspection of the plots, the proceeding was converted into a proceeding under Section 145 of the Code of Criminal Procedure. A pleader commissioner was appointed in the course of the proceeding under Section 145 to report on the identity of the lands. The proceeding, however, terminated in favour of the defendants by the order of the Magistrate passed on the 21st June, 1956 and the defendants, taking advantage of the order, dispossessed the plaintiffs from the disputed lands on the 22nd June, 1956. In course of the proceeding, the defendants stated that the ancestors of the plaintiffs were temporary tenants, and they abandoned the lands soon after the survey. They had no concern with the lands of village Harnathpur, and the lands were settled by the Khas Mahal with different persons, and whatever was not settled remained as gairmazrua malik land of the khas mahal. Plots Nos. 29 to 39 and other cadastral survey plots were -amalgamated, and they form plot No. 4 of Khas Mahal survey of 1910. This plot was settled with a new tenant. Bidru Gope, who sold it to Deochand Tewari. A certificate proceeding, being case No. 77 of 1920-21, was started against Deochand Tewari, and Khas Mahal plot No. 4 was auction purchased by Nirgun Das, father of the defendants first party, on the 8th December, 1920. The plaintiffs' case was that the defendants' statement was absolutely unfounded. The ancestors of the plaintiffs never abandoned the lands. Bidru Gope had no concern with cadastral survey plots Nos. 29 to 39, nor did he ever sell the lands to Deochand Tewari. Bidru Gope had 50 bighas of land which was, however, comprised in thana No. 14. This was purchased by Meghu Sah of Dalhatta at Court auction in the year 1918, and the auction-purchaser came into possession of the land. Bidru Gope had no land to sell to Deochand Tewari. In the plaint, the plaintiffs endeavoured to meet the defence case in the proceeding under Section 145 of the Code of Criminal Procedure to the effect that the defendants took settlement of survey plots Nos. 39 to 43 and 45 and other lands from the Khas Mahal under a patta, dated the 9th of March, 1927, saying that the alleged patta was a collusive document, and it was executed without any consideration. The defendants never came in possession over any of the disputed plots mentioned in the Patta. The lands covered by the patta were situated in thana No. 14 and not in thana No. 40. The lands of thana No. 14 were still in the bed of the river Ganges, and hence the defendants were making false claim to the lands of thana No. 40, which emerged out of water. It is not necessary to set out the other statements in the plaint as they are not relevant.