RAMPATI CHATTERJEA Vs. RAMANI MOHAN SEN

JUDGEMENT

(1.) The respondents in this appeal are the putnidars of Mouzahs Panuhat and Ekaihat. They filed a series of rent suits against the appellants as dar-putnidars holding lands under them in these mouzahs. The appellants defended the suits, claiming abatements of rent on various grounds, and also filed cross suits alleging that they had been deprived by the respondents certain lands included in their dar-putni leases, and claiming on this account an entire suspension of rent, or in the alternative an abatement in respect thereof, The respondents denied that these lands and certain other lands in respect of which the appellants claimed an abatement on the ground of diluvion (all of which will be referred to for convenience as " the disputed lands ") were included in the dar-putnis. The claim for suspension was negatived by both Courts in India, and has been abandoned before this Board, leaving the question of abatements of rent for decision here. All the suits were tried together before the Subordinate Judge of Burdwan, who allowed abatements under various heads, including the claim to the disputed lands, which he held were included in the dar-putnis. On appeal the High Court disagreed with the Subordinate Judge as to the disputed lands and reduced the abatements accordingly.

(2.) The question as to these lands arises as follows. Mouzahs Panuhat and Ekaihat lie in an area which is from time to time subjected to diluvion by the action of the Bagiratbi (Ganges). Lands are constantly being washed away and constantly reforming on one side or the other of the river, and the boundaries at any given time are in consequence difficult of identification. The earliest maps available are those of the Thak survey of 1855, three sheets of which are involved in the ascertainment of the two mouzahs. Sheet No. 80 delineates an area, the residue of which, excluding certain chakran plots, is shown as appertaining to Panuhat. The residuary area of Sheet No. 5 in the same way is shown as Ekaihat. There is no dispute that all the residuary lands so shown on these two sheets are included in the respective dar-putnis of the two mouzahs. The dispute being with the third sheet which is headed " Thahbust map No, 8 of the accreted chur the River Bagirthi . . . in district Burdwan Police Station and munsif Catchary Katwa . . ." It shows two chaks or parcels, numbered 6 and 15, which belong to Panuhat, and two chak Nos. 18 and 19 and a residuary chak which belong to Ekaihat. This appears to be the case of both parties, the dispute being whether the whole or only portions of the lands so shown on Map No. 3 were included in the dar-putni leases. The Subordinate Judge says that before him the putnidars (respondents) urged that chak 6, 15, 18 and 19 were excluded from the dar-putnis, the dispute therefore covering all the lands on Map No. 3. Before this Board (and apparently also in the High Court), the respondents have confined their contentions to such portions of Nos. 15, 18 and 19 and the residuary chak as were in 1886, when the dar-putnis were created, either under the river as it then ran, or left or reformed on the far side of it from the lands shown on sheets 5 and 80, and it is only with these lands that their Lordships have to deal.

(3.) In 1886 the putnidars were the Land Mortgage Bank of India Ltd., who in that year executed dar-putni pottahs of both mau-zahs in favour of the predecessor in title of the appellants, and in 1893 sold the putni rights in both mouzahs to the predecessor in title of the respondents. The respondents admit that the disputed lands were included in the bank's putni and claim title to them under their transfer from the bank, but they deny that they were included in the preceding dar-putnis created by the bank on the ground that they were then either totally submerged or cut off by the river from the rest of the mouzahs.