GOPAL CHANDRA DEB GOSWAMI Vs. PADMAPANI GOSWAMI

JUDGEMENT

(1.) The suit out of which this second appeal arises relates to a dispute regarding what is known as a kheraj estate in Assam, that is, revenue paying estate. The plaintiffs and defendants derived title from a common ancestor who lived some 130 years ago. He possessed several lakhar or nisf-kheraj estates, and he also had (sic) venue paying estate of 78 bighas which is(sic) in dispute. The plaintiffs are found by (sic) Courts to have been holding 29 bighas, that is, almost 2/5th of this land in a demarcated plot for at least 100 years. Their possession has been recognised in the Cadastral Survey, pattas have been granted and they have had to go to Court to have their title declared because the defendants went to the Revenue Officer and claimed to make a partition under which the estate would be divided into four and the plaintiff s share would only be one fourth.

(2.) Now the facts in this case are all found in the plaintiffs favour by the Judge in the lower Appellate Court. He found that "evidence was adduced to prove that the plaintiff s branch had long been in possession, of a part of the estate in suit which corresponds roughly to 2/5th of the whole, that they paid the revenue separately in accordance with that division. This is proved by the record of the Cadastral Survey and by the record of the re-Settlement Survey and also by the rent receipts which have been proved in the case. In the Cadastral Survey, there was a large plot of 29 bighas which was shown as possessed by the plaintiffs and this plot which has been split up into several at re-Settlement is still in their possession. Witnesses admit that it has always been so. On the other hand, the shares in possession of the other branches in the estate in suit do not correspond to l/5th each. Some of them have sold parts of this estate to others." This is quite sufficient to account for their not amounting to l/5th each and does not affect the previous finding in the least. Then he says: "in fact, there has been private partition and separate possession of part at least of this estate for a long time, though not of the whole, for 16 bighas is held by bhakals, and the bhakals with their lands have not been divided between the four branches."

(3.) This finding ousts the jurisdiction of the Collector altogether. There has been a partition by metes and bounds; 2/5th share has been held by these plaintiffs for 100 years or so under this private partition according to the findings and how can there be a fresh partition by the Revenue Authorities, for not only has this share been held in, (sic) under the private partition but have of the revenue had been paid to the (sic) by the plaintiffs for all these years, Where then does the jurisdiction of the butwara Court come in? The learned Judge having thus set out the evidence suddenly turns round and says, the evidence, as a whole points to the conclusion that the plaintiff s branch is entitled to 1/4th of the family property. He then makes a number of presumptions which he was not entitled to make, and he finally says that it is impossible to make a butwara of this estate without throwing the whole of the nisf-kheraj, lakheraj and any other property, there may be into the hotchpot and having a general partition on the footing of a quarter share each.