JOGENDRA KRISHNA BANERJI Vs. SMSUBASINI DASSI

JUDGEMENT

(1.) These two appeals arise out of a suit for declaration of plaintiff's mourashi mokorari tenancy right in the lands recorded in the C. S. Khatians Nos. 425 and 178 of mouza Punja Sahapur in the district of 24-Parganas. The facts which are not in dispute in these two appeals are these: 1 (a). The lands recorded in C. S. Khatian No. 425 appertain to touzis Nos. 159, 206 and 210 of the 24-Parganas Collectorate. Defendants 1 to 12 (hereinafter referred to as the Banerji defendants ) are owners of 111/2 annas share and defendants 13 to 19 (hereinafter referred to as the Mondal defendants ) are owners of the remaining 41/2 annas share of these three touzis. (b) In the year 1254 B.S. (1847) one Earn Chandra Dass was in possession of the lands of this khatian as a tenant under the predecessor in interest of defendants 1 to 19 at an annual rent of three sicca rupees (Ex. D 2). In .1275 B.S. (1868-1869) Digambar Das, son of Earn Chandra Dass, was in possession of this tenancy at an annual rent of rupees 3-3-4 (equivalent of three sicca rupees) : see Exs. C 2 to C 3 (2). This rent was thereafter enhanced to Rs. 4-8-0 and then to Rs. 8-2-131/4 gandas. 2 (a). The lands recorded in C. S. Khatian Ho. 178 appertain to touzi No. 93 of the 24-Parganas Collectorate. Defendants 20 (Ka) to 20 (Ga) (hereinafter referred to as Mitra defendants ) are the proprietors of this touzi. (b) One Bhairab Chandra Banerji was in possession of l1/2 bighas of lands of this khatian as a tenant under the proprietors of touzi No. 93 at an annual rent of three sicca rupees (Ex. G-l). In 1260 B.S., this rent became rupees 3-3-4 after conversion from sicca rupees to company's coins. The remaining portion of the land recorded in this khatian was thereafter added to the original area of the tenancy and the total rent was fixed at Rs. 7-3-141/2 gandas [Ex. F (1), EX.E(1) to EX. E 4 (1)]. In 1268 B.S. this rent was enhanced to Rs. 11 and in 1270 it was again enhanced to Rs. 16-8-0. (3) On 15 January 1875 Digambar Dass mortgaged the lands of both these tenancies to Messrs. Lazarus & Co. (4) In 1881 Messrs. Lazarus & Co. sued Digambar Dass on their mortgage and got a mortgage decree. In execution of this decree, the mortgaged properties were sold and were purchased by the mortgagee-decree-holders. The mortgagee purchased, thereafter became insolvent, and the Official Assignee sold the right, title and interest of Lazarus & Co. in these two tenancies to one Madhusudan Dey (Ex. 2-D). (5) On 20 January 1891, Madhusudan executed a Bainapatra contracting to sell these two tenancies to one Gouri Pada (Ex. 2-C). On 2 February, 1891, he sold to Gouri Pada these two tenancies. On 21 February 1891, Gouri Pada sold these tenancies to one Ganesh Chandra Nath (Ex.2). (6) Ganesh mortgaged his interest in these two tenancies to one Prasanna Addy on 20 August 1900 (Ex. 2-A). On 10 March 1898, Ganesh satisfied this mortgage and got a release from the mortgagee (ex. 2-e). On 1 February 1908, Ganesh executed a Bainapatra contracting to sell the two tenancies to one Shama Charan Banerjee (defendant 21) in the benami of Parbati Charan Naskar (Ex. 5) and on 1 March, 1908, he sold these two tenancies to Shama Charan Banerjee in benami of Parbati (Ex.6). The latter executed a deed of release in favour of Shama Charan on 12 October 1909 (Ex. 18). (7) On 27 May 1919, Shama Charan sold both these tenancies to the plaintiff in this suit (ex. l) and plaintiff entered into possession of these two tenancies on the basis of his purchase. (8) The Record of Rights of mouza Punja Sahapur was prepared and finally published under chap. 10, Ben. Ten. Act in 1930-1931. In this record plaintiff was recorded as the Dakhalikar (possessor) of the lands of Khatian No. 425 on an annual rent of Rs. 8-5-10 (Rs. 2-8-7 gandas and Rs. 5-13-3 gandas payable to Mondal defendants and Banerjee defendants respectively) and as Dakhalikar with permanent right of the lands recorded in Khatian No. 178 on an annual rent of Rs. 16-8-0 payable to Mitra defendants. (9) On 16 August 1935, the Banerji defendants obtained an ex parte decree for rent in respect of the lands recorded in Khatian No. 425 against plaintiff's vendor (defendant 2l).

(2.) On 17 June 1936, plaintiff instituted the present suit for declaration of her mourashi mokarari tenancy right in the lands recorded in both these khatians. The Mondal defendants did not contest the suit. The Banerji defendants and the Mitra defendants contested the suit. Their defence in substance is that the plaintiff has no permanent interest in these two tenancies. The trial Judge has arrived at the following findings: (1) that the incidents of both these tenancies are governed by the Transfer of Property Act; (2) that the plaintiff has failed to prove that the tenancy recorded in Khatian No. 425 is a permanent tenancy; (3) that the plaintiff has acquired the limited interest of a permanent tenant by adverse possession for more than 12 years in the lands recorded in Khatian No. 425; (4) that the tenancy recorded in Khatian No. 178 is a permanent tenancy. On these findings the learned Judge has decreed the suit. Hence these two appeals-one by the Banerji defendants (F. A. No. 17 of 1938) and the other by the Mitra defendants (F. A, No. 50 of 1938).

(3.) F.A. No. 17 of 1938. - The appellants in this appeal assailed the finding of the trial Judge that the plaintiff has acquired in the tenancy recorded in Khatian No. 425 the limited interest of a permanent tenant by adverse possession. The plaintiff-respondent in this appeal assails the finding of the trial Judge that this tenancy in its inception was not a permanent tenancy. The points for determination in this appeal, therefore, are: (1) whether this tenancy from its inception is a permanent tenancy; (2) whether the plaintiff has acquired the limited interest of a permanent tenant in respect of the lands of this tenancy by adverse possession for more than 12 years. Earn Chandra Das was in possession of this tenancy in the year 1847. The evidence in this case shows that before Earn Chandra one Bhairab Chandra Banerji was the tenant (Exs. d-2, C-2 and 8-a). No evidence is now available to show when the tenancy was created, what the incidents of this tenancy were and how Earn Chandra came to be in possession of this tenancy in 1847. The origin of this tenancy is, therefore, unknown.