KESHO PRASAD SINGH Vs. JAGDEO LAL

JUDGEMENT

(1.) This appeal arises out of a suit by the Maharaja of Dumraon for recovery of possession of certain naubarar diara lands and for mesne profits.

(2.) The plaintiff's case was that the lands in suit had been settled with the defendants by a registered patta and kabuliyat for a fixed terra which had expired and that the defendant had refused to give up possession. The lease was executed on 1 December 1919 for a term of years from 1325 to 1331. The lease recites that the lands are the Malik's zerat diara lands and that the lessee had been in occupation for rather more than one year before the execution of the lease. This period however is included in the period for which the lease was executed.

(3.) The defence in the suit was that the defendant had been in possession for more than twelve years before the execution of the patta and kabuliyat and had thus acquired occupancy rights. Both the Courts have found that the defendant had not acquired occupancy rights. The trial Court held that the possession of the defendant commenced at the date of the kabuliyat and decreed the plaintiff's suit with mesne profits. In appeal by the defendant the learned Subordinate Judge held that the lands had been proved to be zerat lands of the Malik, and that the defendant had been in occupation of them before the execution of the kabuliyat. Applying Section 47, Ben. Ten. Act, to the facts of the case the learned Judge reversed the decree of the trial Court, but without coming to a definite finding as to the nature of the defendant's occupation for the period prior to the execution of the lease.