SRI CHANDRA CHURDEO Vs. LALDHARI PRASAD SINGH

JUDGEMENT

(1.) The action out of which this appeal arises was instituted on 30 September 1921, and was for possession of certain lands, 48 bighas, and some odd cottahs in mauza Naya Gaon. The plaintiffs, now the first two respondents, claimed the proportionate share as purchaser under deeds of July 1921, whereby they purchased a 12 annas' share in the mauza. Appellants, as defendants, resisted the claim for possession on the ground that the disputed lands were raiyati holdings, of which they were tenants, the title under which as transferees they held dating back many years and having been recognized in the khatian of 1902. For present purposes the history of the relevant village titles may be traced back to 1882, when the zamindars, who were throughout absentee landlords, began to grant certain leases to a Mr. Crowdy, who started an indigo factory in the mauza. He or his successors may be referred to herein as the Factory, the name by which it was called being Bheriahi. The leases included a permanent lease of 23 bighas (not material in this case), on which the buildings were erected, and various other thika leases. Under these latter leases there was continuous possession by the Factory or its mortgagees or transferees until September 1909. Some of these leases did not actually expire till September 1910, but that distinction appears to have been overlooked. During the period in which the Factory were in possession as thikadars, they acquired by purchase the occupancy rights over the 48 bighas now in dispute, and these rights were recognized in the khatian of 1902.

(2.) On 5 April 1909, the appellants' father was put into possession of these rights under the circumstances now to be detailed. The Factory had granted two separate mortgages, one of 7 July 1896, to the appellants' grandfather, who on 20 April 1898, obtained a decree on the mortgage for Rs. 17,238-6-0, and future interest; the other mortgage was given in 1894 to certain lenders, who on 7 November 1899, assigned it to Finlay, Muir and Co. About 1902 Finlay, Muir and Co. entered into possession as mortgagees and brought a suit for foreclosure. Disputes arose as to priority between Finlay, Muir and Co., and the appellants' predecessors. These disputes were finally compromised on 18 March 1909, on the terms that Finlay, Muir and Co. should convey the whole property of the Factory, to the appellants' father free of all encumbrances, for Rs.5,000, whereupon the appellants' father, was put in possession, Finlay, Muir and Co., having foreclosed with that object. A formal conveyance to the appellants' father (since deceased) was executed to give effect to the compromise on 8 February 1910. His rights are now vested in the appellants. Meantime, in September 1909, the zamindars had granted a lease as on the expiry of the Factory's lease of the 12 annas interest in the mauza to Mahant Lachman Dass and Bhauna or Mona Singh, and in November 1909, a further lease of two annas to Parmeshwar Jha. A certain discrepancy in the interest so leased as compared with the entire holding may be disregarded and was not relied on at the hearing of the appeal. It was agreed that there was no question of parcels. These leases expired in September or November 1918, being each for nine years. By deeds dated 2 July, 1921, and 22 July, 1921 the proprietors of shares aggregating 12 annas sold their shares to the plaintiffs-respondents, who instituted the present action on 29 September 1921, having been refused possession by the appellants.

(3.) The case was heard before the Subordinate Judge of Monghyr, who gave judgment on 31 May 1924. He found that the disputed lands were lands in which the Factory had acquired a right of occupancy and were not bakasht lands, and he decided in favour of the appellants on the ground of recognition : though he decided against the appellants on their plea that there was a custom admitting that occupancy rights could be transferred without the consent of the landlord, he held that that plea of custom was immaterial because Finlay, Muir and Co. having succeeded to all the rights of the Factory, including the occupancy rights in the lands in question, could transfer to the appellants' predecessor those occupancy rights, and being for this purpose in law immediate landlords of the raiyat, their consent (being a consent to their own act) was implied. He decided against the appellants' plea that the suit was barred by limitation; he also decided that S. 22 (3), Ben. Ten. Act of 1885, did not affect the appellants' rights, nor did any principle of merger apply. He dismissed the suit by a decree dated 31 May 1924.