AMULYADHAN SINHA Vs. KANAK CHANDRA MUSTAFI

JUDGEMENT

(1.) The plaintiff-appellant purchased touzi No. 97 known as Kharija Taluk Pabgati in the year 1923, at a sale for arrears of revenue. He took possession through the Collector but when he sought to possess the lands of the tauzi he was resisted by some of the defendants. Thereupon he sued for a declaration of his title to the property and for khas possession by evicting the defendants therefrom. A vast number of defendants were impleaded, but most of them were subsequently given up and their names struck out of the plaint. The suit proceeded against defendants 1 to 19, 22 to 26,114, 363, 518 to 518g, 519 to 522, 525 and 526 only. Of these, defendant 363 filed one petition of compromise, defendants 518 to 518g and 519 to 522 filed another petition of compromise, and defendants 525 and 526 have filed still another. Defendants 5 to 7 filed a written statement disclaiming title or possession in the land; and defendants 17 to 19 filed another written statement to the same effect. Defendants 1, 4 and 10 each filed a written statement denying plaintiffs title, and claiming to be owners in possession of shares in a gati tenure which had been in existence from before the permanent settlement and which was therefore not liable to be annulled.

(2.) At the time of hearing only defendant 10 appeared and contested. The learned subordinate Judge came to the conclusion that the gati tenure set up by defendants 1, 4 and 10 had been in existence from before the permanent settlement, and that defendant 10 had a 2 annas share in that gati. He found further that the plaintiff had acquired the remaining 14 annas share in the gati tenure. He therefore decreed the suit in part declaring plaintiff's title to tauzi No. 97 and allowing plaintiff joint possession to the extent of 14 annas share with defendant 10 in the gati tenure and directed the eviction of the absent defendants and of the disclaiming defendants (defendants 5 to 7 and 17 to 19) from the land. As against the defendants who filed petitions of compromise, the suit was decreed in terms of those petitions. Against this judgment and decree, plaintiff filed one appeal, which is T. A. No. 47 of 1936, and defendants 1, 2 and 4 and another person Renukabala who was subsequently added filed another appeal which is T. A. No. 52 of 1936 before the District Judge of Khulna. These two appeals were heard together. The learned District Judge came to the conclusion that the gati tenure was in existence from before the permanent settlement and wastherefore not liable to be annulled. He accordingly dismissed the plaintiff's appeal, allowed T. A, No. 52 of 1936 and dismissed plaintiff's suit in its entirety. Against that judgment and decree, plaintiff has preferred this second appeal.

(3.) Dr. Pal appearing on behalf of the appellant argued that even on the findings of the Courts below, his client was entitled to a declaration of his title as proprietor of tauzi No. 9Y. This title had been denied and an issue regarding it had been framed and decided in plaintiff's favour. Dr. Pal further argued that the decree as against those defendants who had compromised could not be set aside, and that there was no justification for setting aside the decree against the non-contesting and non-appealing defendants. His further argument was that defendants interest came into existence after the permanent settlement and was therefore not protected; and even if it be held that the gati tenure had been in existence from before the permanent settlement, defendants-appellants in the Court of appeal below not having contested in the original Court, should have been required to prove a subsisting title in themselves before the suit was dismissed as against them.