RAMPATI CHATTERJI Vs. RAMANI MOHAN SEN

JUDGEMENT

(1.) The respondents in this appeal are the patnidars of mouzahs Punuhat and Ekaihat. They filed a series of rent suits against the appellants as darpatnidars 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 of certain lands included in their darpatni 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 darpatnis. 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 darpatnis. 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 Bagirathi (Gaugos). 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 those two sheets are included in the respective darpatnis of the two mouzahs. The dispute begins with the third sheet which is headed: "Thakbust map No. 3 of the accreted chur of the river Bagirathi . . . in district Burdwan, Police Station and Munsif Catohary Katwa . . ."

(3.) It shows two chaks or parcels, numbered 6 and 15, which belong to Panuhat, and two chaks 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 darpatni leases. The Subordinate Judge says that before him the patnidars (respondents) urged that chaks 6, 15, 18 and 19 were excluded from the darpatnis, the dispute therefore covering all the lands on Map No. 3. Before this Board (and apparently also in the High Courts), 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 darpatnis were created, either under the river as it then ran, or left or reformed on the far side of it from the lands on sheets 5 and 80, and it is only with these lands that their Lordships have to deal.