NAGENDRA CHANDRA DE Vs. HAR KUMAR DE

JUDGEMENT

(1.) The questions arising in this Letters Patent appeal were not considered necessary for determination by the learned Judge in this Court as he was of opinion, for the reasons stated by him in his judgment, that the appeal to this Court was incompetent in-asmuch as defendant 4 Debendra Chandra l)e who was a minor had not been properly represented in the appeal. The defect, such as it was, has now been removed and at the hearing before us steps were taken to have the said minor defendant properly represented by a guardian ad litem.

(2.) The appeal arises out of a suit for recovery of khas possession on declaration of plaintiff's title and for annulment of certain encumbrances in respect of two dags, namely, dags Nos. 39 and 34. The plaintiff alleged that he had purchased a Noabad taluk being taluk Jinnat Ali at a sale for arrears of revenue and that as such purchaser, ho was entitled to khas possession of the two dags in question by cancellation of encumbrances under the provision of Act 7 (B. C.) of 1868. The defendants who were the tenants eon-tended that in respect of the dags referred to above they were raiyats having occupancy rights and that as such, their interests in the said two dags were protected under the provisions of Section 14 of the said Act. These being the respective contentions of the parties, the lower appellate Court found that in respect of dag No. 39 the defendants had succeeded in establishing that they were raiyat's having occupancy rights and that therefore the plaintiff was not entitled to any relief whatsoever in respect of dag No. 39, the same being a protected interest within the meaning of Section 14 of the Act. The lower appellate Court; found however that as regards dag No. 34, it appeared from the settlement record which is Ex. 3 in this case, that the plaintiff was entitled to ask for cancellation of the encumbrances, because it had not been shown that the encumbrance such as it was either created or recognized during the settlement proceedings which took place. The Court of appeal below referred to Ex. 3 and found that the settlement officer had recorded an entry in respect of dag No. 34 which ran in those terms: "The etmam is not binding as against the Government", and having regard to the said entry, the Court was of opinion that it was not a protected interest within the meaning of Sub-section (3), Section 12, of the Act. In other words, the result was that the defendants succeeded in respect of dag No. 39, but failed as regards dag No. 34.

(3.) The present appeal has been brought by the defendants and their contention is, that both in respect of dag No. 39 and dag No. 34 they are raiyats having occupancy rights and that therefore their interests therein are protested under Section 14 of the Act, and further there is nothing to show that the etmam or under-tenure in respect of dag No. 34 was not recognized during the settlement proceedings.