CHUNDRABATI KOERI Vs. HARRINGTON

JUDGEMENT

(1.) THE Plaintiffs in this suit and Appellants in this appeal alleged in their plaint, which asked for recovery of possession and mesne profits, that they are proprietors and zemindars of a third share of mouzah. Dahia, pergunnah Naipore, and that a mostajiri settlement-a lease-of the mouzah, except 3 bighas 14 cottahs of khodkasht land, dated the 3rd of July, 1877, was made by the Plaintiffs and the husband of the first Plaintiff to the Defendant; that at the expiration of the lease the Defendant did not give up possession of the leased share of the mouzah, and was forcibly holding possession thereof. The plaint was filed on the 13th of March, 1885, the Defendant being stated therein to be Mr. T. Poe.

(2.) IN the order-sheet in the record of proceedings it appears that on the 17th of April, before the time allowed for filing the Defendant's written statement expired, an order was made on the petition of the Plaintiff that E.T. Harrington should be made a Defendant in the place of A.T. Pugh, and the plaint be amended accordingly. A.T. Pugh is evidently a mistake for T. Poe, which is not the only inaccuracy in names in the documents in the suit. This order is not in the proceedings, and the reason for making. it does not appear. It could not, however, have been made under Section 368 of the Code of Civil Procedure, in consequence of the death of T. Poe, as in that case a summons would have been issued to Harrington, as his representative, to appear and defend the suit, which does not appear in the order-sheet to have been done. Apparently the suit was continued against Poe under the name of Harrington. Poe is the person who is stated in the plaint to be holding possession when it was filed, and is described in the title of it as proprietor of the Bhugwanpore concern-meaning the indigo factory. This is material as to the right of occupancy, which is one of the questions in the case. A right of occupancy cannot be transferred, and it is necessary that Poe should have been in continuous occupation.

(3.) AS to the first, the evidence is both oral and documentary. The witness Jowhur Lal, seventy-three years old, an inhabitant of Dahia, and a small shareholder in Hurpore Chuhar, the principal mouzah, deposed that for thirty-four or thirty-five years before the trial 34 bighas in Dahia had been in the possession of the factory under indigo cultivation; and the witness Nund Lal Roy, aged sixty years, a shareholder in Dahia, deposed that indigo was planted by the factory in thirty-four bighas which now "lie in the putti (or share) of the Plaintiffs," that at the time of the ijmali (the joint ownership) they were in the putti of the other two-third sharers, that the thirty-four bighas were granted to the saheb-meaning the factory--thirty-four or thirty-five years before the trial, and since that time the factory had been in possession of the thirty-four bighas cultivating indigo. Other witnesses deposed to the same effect.