BRIJNANDAN ROY Vs. JADUNANDAN SINGH

JUDGEMENT

(1.) By an order dated 2-5-1958, this Court had remanded the case to the lower appellate Court to record its finding on issue No. 3 framed by the learned Munsif in this case. The learned Subordinate Judge has submitted his finding that the entire story of possession and dispossession as alleged by the plaintiff was incorrect and, therefore, he had failed to prove that he was in possession of the land within 12 years of the suit and had, therefore, no subsisting title to it.

(2.) The suit was for declaration of title to and recovery of possession of 17 kathas 12 1/2 dhurs o land of survey plot No. 1341 situated in village Bishunpur Ratwara. There were other reliefs with which I am not concerned in this appeal. The plaintiff's case was that defendants 1st party were co-sharer proprietors of Tauzi No. 10747. In this tauzi one Lila Mandal had raiyati Kasht lands about 1 bigha 11 kathas and odd dhurs contiguous south of which one Zulum Roy had 7 kathas of raiyati land but in the survey record of rights, finally published in the year 1897, the area of plot No. 1341 was recorded at 11 kathas 18 dhurs; though its correct area was 1 bigha 11 kathas 5 dhurs. Corresponding mistake appeared to have been committed in respect of the area of survey plot No. 1342 which had been recorded as 1 bigha 6 kathas 7 dhurs instead-of 7 kathas. In spite of these mistakes it was alleged that Lila Mandal and Zulum Roy had continued to remain in possession of the actual areas of the plots in question. In 1901 these two plots, 1341 and 1342 were allotted to the putti of Ramraji Roy, father of defendants 1 and 2, by a Collectorate partition. There had been an objection on behalf of Lila Mandal about the mistakes in respect of the areas with regard to the aforesaid two plots during the batwara proceedings and on admission of Zulum Roy that objection had been decided in favour of Lila Mandal and the areas of these two plots had been corrected. Lila Mandal died leaving behind three sons, Chuni, Abilash and Malahu, who separated and partitioned their lands privately, each of them getting one third share out of 1 bigha 11 kathas 5 dhurs of land of survey plot No. 1341. Chuni died leaving behind a widow, Musammat Kanchania and daughter of Pilua. Musammat Pilua died leaving a daughter, Musammat Sukalia, married at Madhuban. Musammat Kanchania also died later on, Abilash, one of the sons of Lila, died leaving one daughter and no sons Bela Mandal was the daughter's son of Abilash. The third son of Lila, Malahu, has his great grandson Rambilash alive. Musammat Kanchania and Musammat Sukhalia, the widow and the grand daughter of Chuni, the first son of Lila, sold 10 kathas 12 1/2 dhurs of land of plot No. 1341 and another land of village Madhuban to the plaintiff by a registered sale deed dated 24-3-1945 putting the plaintiff in possession of the land. One Bhuneshwar, one of the grandsons of Malahu, the third son of Lila, and the widow of Tapeswar, his second grandson, named Musammat Manubati for self and as guardian of Rambilash, great grandson of Lila, sold 7 kathas of land of survey plot No. 1341 to the plaintiff by a registered sale deed dated 21-7-1945 and put him in possession. It was further alleged, by the plaintiff that by mistake although the plaintiff had purchased the lands of plot No. 1341 only, but the other plot 1342 came also to be mentioned in the above two sale deeds. Defendant No. 1, purchased 4 kathas of land from the daughter-in-law of Malahu, Musammat Manubati in the name of his son, defendant No. 3. In this sale deed also, it was alleged by the plaintiff, by mistake plot No. 1342 was entered. The further case of the plaintiff was that subsequently defendants 1 and 2 had taken a collusive sale deed from Zulum Roy, defendant No. 18, in respect of 19 kathas 2 dhurs reciting that this was the area of plot No. 1342, but according to the plaintiff they never came in possession of this land. As regards another registered kebala dated 4-8-1944, executed by Bela Mandal, grandson of Abhilash, son of Lila, in respect of 10 kathas 19 1/4 dhurs, of survey plot No. 1341, the plaintiff's case was that defendants 1 and 2 had taken this sale deed in the names of their relations, defendants 10 and 11, but actually Belli was entitled to and in possession of one third share which came to 10 kathas 8 1/4 dhurs and in this sale deed also plot No. 1342 had wrongly beer, mentioned. Defendants 1 and 2 were alleged to have taken another sale deed dated 16-9-1949 from Zulum Roy in the name of defendant No. 3 for 7 1/4 kathas of land of plot No. 1342. The cause of action for the suit, as alleged by the plaintiff, was that the defendants 1st party had on the basis of these sale deeds, dispossessed him on the 15th Baisakh, 1357 Fasli from 17 kathas 12 1/2 dhurs of land of survey plot No. 1341, which the plaintiff had purchased from the "heirs of Lila Mandal by virtue of the two sale deeds dated 24-3-1945 and 21-7-1945.

(3.) The suit was mainly contested by defendants 1 to 5 of the first party. Their case was that Zulum Roy was in possession of 1 bigha 6 kathas 7 dhurs of land and Lila Mandal was in possession of 11 kathas 18 dhurs of land and the survey authorities hud correctly prepared the record of rights. The allegation that Zulum had admitted the title and possession of Lila in the Batwara proceeding was denied and it was alleged by the defendants that the areas mentioned in the Batwara proceedings contrary to the areas mentioned in the khatian, were not 'binding on them and they asserted that in spite of these wrong entries, Lila and Zulum had continued to be in possession as before according to the entries of the record of rights. They also denied the allegations made by the plaintiff that the defendants 2nd party were their relations and maintained that defendants 2nd party had themselves purchased certain lands on their own account and were in possession of those lands.