DHARANI KANTA LAHIRI CHOWDHURI Vs. GABAR ALI KHAN

JUDGEMENT

(1.) This is an appeal from two decrees of the High Court of Judicature at Fort William in Bengal, dated the 3rd July 1908, which were made in an appeal and cross-appeal from the decree of the Second Subordinate Judge of Mymensingh, dated the 19th March 1906.

(2.) The appellants are the zamindars of Mauzah Sahildeo in Pergunnah Mymensingh. The respondents are in possession of seven puras or 592 big has of land within Mauzah Sahildeo from the possession of which the zamindars sought in the suit in which this appeal has arisen to eject them. The dispute as to the right to the possession of the seven puras of land arose out of an application which was made in 1891 under Section 103 of the Bengal Tenancy Act, 1885, by the then zamindars of Mauzah Sahildeo to have lands in Mauzah Sahildeo measured and a Record of Rights prepared. The zamindars of 1891 are represented in this appeal by the appellants. Upon that application the Collector of Mymensingh deputed an Amin to make the necessary measurements and to prepare a Record of Rights. When the measurement papers and ground plans were submitted by the Amin to the Revenue-officer, Gabar Ali Khan and Abdul Ali Khan, who are here represented by the respondents to this appeal, filed objections to the Amin s report and claimed under a sanad of 1815 seven puras of land, equivalent to about 592 big has, as their mokurari chuck at an annual rent of Rs. 9. The Amin had measured the seven puras as land liable to the payment of ordinary rent to the zamindars. The zamindars disputed the claim. Thereupon the Revenue officer proceeded under the provisions of the Bengal Tenancy Act, 1885, to hear and decide the dispute between the claimants and the zamindars. The defence of the zamindars was that the sanad upon which the claimants relied was a forgery, and that the claimants had no title to the lands in dispute. The Revenue-officer on the 21st March 1892 found that the sanad was genuine and gave the claimants a decree for two puras of land as their mokurari, the two puras being equivalent to about 156 big has, and decided that the claimants must pay a rent to be fixed for the remainder of the 592 big has which he found was in their possession. From that decree of the Revenue-officer the claimants and the zamindars respectively appealed to the Special Judge. The Special Judge on appeal found that the sanad was genuine. He was, however, apparently in some doubt as to the extent of land which the claimants were entitled to hold under the sanad as their mokurari. In the sanad the land was stated to be two puras, and boundaries which were capable of being ascertained on the north, south, and west of the land were mentioned in the sanad, but the eastern boundary was stated to be an ail,, boundary ridge. To the eastward of the western boundary of the land the nearest boundary ridge which was found was the boundary ridge between Mauzah Sahildeo and Dattaga the, but if the boundary ridge between Sahildeo and Dattaga the was the ail which was mentioned as the eastern boundary in the sanad the Mokurari chuck comprised seven puras or 592 big has and not two puras only. The Special Judge, however, found as a fact that the claimants had for more than twelve years been in possession of the land which they claimed to hold under the sanad, and gave them a decree on the 1st November 1893, establishing their right to hold the lands up to the boundary line between Mauzah Sahildeo and Dattagathi as their mokurari at a rent of Rs. 9 per annum.

(3.) From the decree of the Special Judge of the nth November 1893 the zamindars appealed to the High Court at Calcutta. In that appeal it was contended on behalf of the zamindars that they were entitled to eject the claimants from the land held by them in excess of that covered by the sanad, and alternatively that they were entitled to additional rent in respect of the excess land. The High Court construing the judgment of the Special Judge held that he had found as a fact that the whole of the land claimed by the claimants was held by them as a mokurari grant under the sanad, and their title to the land had not been acquired by adverse possession. The High Court also held that the question as to whether the zamindars had a right to eject the claimants did not properly arise in the proceedings. The High Court by its decree of the 9th July 1895 dismissed the appeal from the decree of the Special Judge.