KALINDAR SINGH GANESHRAM Vs. TAJSINGH RAGHUBARSINGH AND OTHERS

JUDGEMENT

(1.) IN mouza Kiradi in the Janjgir Tahsil, Bilaspur District, the parties, who are cosharer malguzars of the village had been recorded up to the settlement of 1931 as joint occupiers of the gaonti rioti land in that village. They were also in possession of some bhogra land. That bhogra land was partitioned in the year 1929, and in the settlement of 1931 the parties were separately recorded as occupiers of such portions of the gaonti rioti land of which they were in actual cultivating possession. The settlement record shows that the plaintiff is a recorded occupier of 18.87 acres of land and the defendants of 33.70 acres. The plaintiff contended that his share of the total gaonti rioti lands amounted to 26.28 acres and that he should be given the mesne profits of the lands in possession of the defendants in excess of what he claims as constituting their half share. This claim has been denied in both the lower Courts on the ground that he has no title to any land beyond that of which he is recorded the occupier and that he has been ousted by reason of the possession and adverse title set up by the defendants since the year 1929. Consequently, the plaintiff has preferred a second appeal. In the year 1932 I decided an appeal between the same parties in respect of the profits arising out of gaonti rioti land in the same village. This was decided in the plaintiff's favour, and it is contended that the decision in that case, S.A. No. 103 of 1929, Tejsingh v. Kalindersingh operates as res judicata. In that particular appeal it was held that there was no dispute as to the tenancy in common of all the parties as that matter had already been decided in a suit instituted in the year 1925 and was therefore res judicata in the suit of 1927 out of which the appeal of 1929 arose. The only point for determination was the extent of the mesne profits. Both the Courts below correctly held that the principle of res judicata in respect of the tenancy in common of the gaonti rioti fields cannot operate in view of the fact that there has been an assertion of adverse title since 1929 or, at any rate, since 1931 when the defendants were recorded as separate owners of the fields in their possession whereas before 1931 all the parties were recorded as tenants in common.

(2.) IT is contended before me that the settlement of 1931 can, in no way, derogate from the plaintiff's claim to be a tenant in common of these gaonti rioti fields and that there has been in fact no assertion of adverse title and that the mere refusal to deliver part of the profits cannot amount to such an assertion. It is, however, very evident from the plaintiff's own evidence that, apart from an unwillingness to give a share of profits of fields whose area exceeded the lands cultivated by the plaintiff, there has been a very definite assertion of adverse title. In the year 1931 settlement operations were completed in this tract and the defendants, who previously had been recorded as occupiers in common (which corresponds to tenants in common, vide Aditram v. Pankha Pratab 11 N.L.J. 214, were now recorded as separate occupiers of the fields which they cultivated. The plaintiff stated that he protested to the settlement officer as to this entry in the settlement papers but that his claim was disregarded and he was told to file a suit. The suit had to be filed under the provisions of Section 80, Land Revenue Act. He did not file the suit and therefore the settlement entry is conclusive. The argument advanced in the Court below that the suit was not filed as an appeal in respect of profits from the years 1927 to 1929 was pending was correctly stigmatized in that Court as irrelevant. A somewhat different argument was advanced here and it was asserted that the plaintiff did not file a suit as it was entirely unnecessary as he was aware that the settlement entry could have no effect on his rights as a co-owner in the common. I am not aware of any basis for this belief or of any basis for the statement which has been made by the learned Counsel that these gaonti rioti lands are impartible and that because they are incapable of partition the plaintiff did not think it necessary to file the suit which the settlement officer directed him to file. Aditram v. Pankha Pratab 11 N.L.J. 214, to which I have already referred lays down that the position of an occupier of gaonti rioti land is no stronger than that of an occupancy tenant. By Section 93, C.P. Tenancy Act, an occupancy holding may be partitioned. Far from believing that the gaonti rioti land was incapable of being partitioned the plaintiff himself in the year 1938 sought partition of the land in the Court of the Revenue Officer: vide Ex. D-3, and partition was refused, not because the Court held the land to be impartible, but because the Court held that there was no joint holding in existence.

(3.) IN the case before me there has been a definite setting up of adverse title and exclusion from joint possession by the action of the defendants during the settlement proceedings. This action was resisted by the plaintiff during those proceedings and his opposition failed. The result was that after the failure of the objection before the settlement officer the defendants were in possession exclusively of the fields they cultivated and had asserted an adverse title to. No steps whatever were taken by the plaintiff to contest this adverse title although he was advised by the settlement authorities to do so. The fields undoubtedly constitute an agricultural holding analogous to an occupancy tenancy. No steps were taken to set aside the settlement entry and it is now conclusive that each party is the sole occupier or occupancy tenant of the fields which he has been cultivating for a number of years and that no one else has any interest or title in these fields. The inevitable result is that the plaintiff is not entitled to bring a suit in respect of the profits derived from 'any of the fields held by the defendants. The result is that the appeal fails and is dismissed with costs.