KIRANSASHI DEBI Vs. ANANDA CHANDRA MUKHERJEE

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould, in a suit for recovery of possession of what at one time constituted Chaukidari Chakran lands.

(2.) On the 20th May, 1806, one Chandra Mohan Banerjee, the predecessor in interest of the defendants, executed a patni kabuliyat in favour of Maharani Kumal Kumari of Burdwan. Under that document the patni was granted in respect of 17 villages for a premium of Rs. 10,000 and an annual rent of Rs. 12,687. The general words in the kabuhyat make it abundantly clear that all the lands included in the villages were intended to be demised to the patnidar. Prima facie, then, the Chaukidari Chakran lands, which, according to the decision of the Judicial Committee in Ranjit Singh v. Kali Dasi Debi 40 Ind. Cas. 981 : 44 C. 841 : 44 I.A. 117 : 25 C.L.J. 499 : 21 C.W.N. 609 : 32 M.L.J. 565 : (1917) M.W.N. 459 : 6 L.W. 101 : 2 P.L.W. 1 : 22 M.L.T. 489 : 15 A.L.J. 390 : 19 Bom. L.R. 462 (P.C.) formed part and parcel of the permanently settled estate of the Zemindar, vested in the patnidar, subject to the rights of the Chaukidars. By a subsequent clause in the kabuliyat, specific lands were, however, excluded from the grant; these were the house, the garden and the tank which were at that time stated to be in the actual occupation of the Zemindar. Another parcel which had been dedicated to the worship of an idol was, in the same way expressly excluded by another clause. There can thus be no doubt on the deed that the Chaukidari Chakran lands were transferred to the patnidar. When, however, the lands were subsequently resumed and settled by Government with the Zemindar, the latter granted a lease thereof to the present plaintiff, who seeks to recover possession from the representatives-in-interest of the original patnidar. The defendants resist the claim and urge that on resumption, the patnidar, by virtue of the putni contract, became entitled to hold possession of the lands.

(3.) The plaintiff relies upon a clause in the lease which entitles the Zamindar to appoint a chaukidar, should there be a vacancy in the office of Chaukidar by reason of his dismissal, death or disappearance: In our opinion, that clause does not indicate that the Ghaukidari Chakran lands were excluded from the putni lease, if, indeed, the lands were so excluded, it is inconceivable that a clause of this description should have been inserted; for, if the Chaukidari Chakran lands remained with the Zemindar, it would be superfluous to state that the Zemindar would be at liberty to fill up a vacancy in the office of Ghaukidar. The view we take accords with that adopted in Nofar Chandra v. Bejoy Chand Mahatap 44 Ind. Cas. 526 : 22 C.W.N. 487, where an earlier decision of this Court in Girish Chandra Roy v. Hem Chandra Roy 5 C.L.J. 28 followed.