KALIDAS DUTT Vs. HARENDRA NATH MUKHERJEE

JUDGEMENT

(1.) This appeal is the outcome of a protracted litigation between the parties. The matter has already been before this Court on more than one occasion. The suit out of which the appeal arises was instituted as long ago as the year 1917. It was a suit for the recovery of arrears of rent brought by the plaintiff as one of a number of cosharer landlords, his case being that by reason of a purchase which was made by his father he was the owner of something like l/7th share in the lands of a certain chak. Put shortly, the plaintiff's case came to this: that the defendants predecessor-in-title had in the year 1851 taken settlement of an area of land under the terms of three pattas. In two of those pattas (the third one not being produced in these proceedings) the area of the land was stated to be respectively 501 and 601 bighas. At the time when the suit was instituted the defendant was said to be in possession of an area of land considerably in excess of 8,000 bighas. The plaintiff accordingly is claiming not only rent which was owing in respect of the area said to have been demised under the three pattas but also rent at the stipulated rate in respect of the additional area said to be held by the defendant. That is to say, the plaintiff was claiming his portion of rent he being, as I have said, the owner of something like l/7 share of the total rights of the lessors. The plaintiff based his case mainly, if not entirely, upon two considerations. He said that the defendant was already paying additional rent to the cosharer landlords in respect of the additional area said to have been occupied by the defendant. The plaintiff also relied upon the fact that the defendant in certain proceedings between him and these other cosharer landlords and also on other occasions had made admissions to the effect that he was in fact holding a quantity of land amounting to more than 8,666 bighas and it was upon that footing that these proceedings were brought. In the original trial before the Subordinate Judge of Mipur a decree was given to the plaintiff for the amount of rent outstanding in respect of the area of land originally supposed to be demised under the three pattas to which I have already referred. The case then went on appeal to the Additional District Judge of the 24-Pargannas when the decision of the Court of first instance was upheld and the appeal dismissed. From that decision the plaintiff appealed to this Court and the matter came before a Bench composed of Chatterjee and Cuming, JJ., in the mon March, 1923. In the course of their judgment the learned Judges said: The Courts below have held that in the absence of the third lease, the area cannot be determined and that the plaintiff cannot rely upon the fact that his cosharers have been getting rent upon the footing of the land being 8,666 bighas, because there was some special agreement between the defendants and these cosharers. It is mainly upon these grounds that the claim of the plaintiff in respect of additional rent for excess area has been disallowed and ho has been given a decree for rent at the admitted rate.

(2.) The learned Judges then said: It is true that there were certain statements made by the defendants or their predecessors-in-title to the effect that the lands held by them in the chak amounted to 8,666 bighas. But there is nothing to show how much of these lands is comprised within each of the settlements. In these circumstances, the plaintiff is not entitled to succeed merely upon the admission of the defendants.

(3.) Had the judgment stopped there, it seems to be tolerably clear that the Court would have dismissed the appeal off-hand upon the footing that the judgments given in the Courts below and the reasons for those judgments were correct. But the judgment in this Court proceeds thus: He (the plaintiff) must show what the area the land covered by each settlement was and cannot be done except by measurement. The Court of first instance, it appears, gave the parties an opportunity of having the lands measured: both parties declined to have any measurement.