RAJA RESHEE CASE LAW Vs. SATISH CHANDRA PAL

JUDGEMENT

(1.) These two appeals by the plaintiff landlord arise out of two suits for rent in respect of two mokarari tenures held by the defendant-respondent under the plaintiff. Second Appeal No. 114, relates to Suit No. 24, and No. 115 relates to Suit No. 27. The appeals will have to be dealt with separately as the facts of the two cases are different.

(2.) I will take Appeal No. 114 first. In this case the tenure was created by a pattah of the year 1867, under the predecessor of the plaintiff by which the defendant's predecessor held 2877, bighas and paid a rent of Rs. 359-10-0. In the finally published Record of Rights 2877 bighas were shown within the tenancy of the defendant, but the contiguous lands were shown in possession of the plaintiff as his khas lands. The defendant brought Title Suit No. 360 of 1923 with respect to 105 plots which were recorded as plaintiffs khas land in the settlement record. Defendant obtained a decree for recovery of possession of lands which were included within the Thak boundary and this decision was affirmed on appeal to the District Judge. The plaint in the present suit included the lands for which defendant obtained a decree for possession. The plea of the defendant in the present suit is that as there has been a dispossession by the landlord from a portion of the tenancy lands there ought to be total suspension of rent. The defendant objected that all the lands for which he recovered the decree had not been included in the plaint. The Subordinate Judge who tried the case in the first instance left the question as to whether all the lands were included in the plaint or not open, but gave a decree to the plaintiffs.

(3.) On appeal the Additional District Judge of Midnapore has reversed the decision and dismissed plaintiff's suit. Hence the present appeal.