LAWS(PVC)-1942-1-22

MOHALUXMI BANK LTD Vs. PROVINCE OF BENGAL

Decided On January 06, 1942
MOHALUXMI BANK LTD Appellant
V/S
PROVINCE OF BENGAL Respondents

JUDGEMENT

(1.) In 1907 one Mobarak Ali applied to the Government for settlement of 174 drones 8 kanis lgandaand 2 cottas( = 1138-72acres) of Noabad land belonging to the Government. That area was then covered with jungle. In his application he stated that he was willing to take the settlement "according to the practice of settlement of such lands." That meant that he was prepared to take settlement according to usual terms and conditions on which Noabad lands are settled by the Government. That application was granted and a 114/1 was created. There was a jamabandi which fixed the rent at Rs. 175 a year (Ex. 5, II. 6) from 1314 Rule Section He was let into possession. Later on he was asked to execute the kabuliat but he evaded the request with the result that there is no written document which shows the terms and conditions of the settlement. In the jamabandi, Ex. 5, there is a column for entering the date and the terms "as mentioned in the patta." There being no patta or kabuliat in this case, the terms and conditions of the settlement were not noted in that column but only the date of commencement of the settlement was mentioned. As the purpose of the jamabandi was to fix the rent, the rent assessed was mentioned in the appropriate column arid the date from which the rent so assessed was to run was also stated.

(2.) Later on, Mobarak Ali sold 8 annas of his interest to one Nilambar and the remaining 8 annas to Santinidhan. Nilambar in his turn sold his share to one Nritya Ranjan, who could not pay down the whole of the price, for the balance of which (Rupees 3000) both Nritya Ranjan and Santinidhan executed a mortgage in favour of Nilambar charging their interest in the said land. In 1927 Nilambar sued Nritya Ranjan and Santinidhan for his money and ultimately got a final decree for Rs. 7752. (In execution thereof, the mortgaged premises were sold and were purchased by the appellant bank for Rs. 400 only, on 11 March 1936. The said bank took symbolical possession on 18 October 1936, but could not get actual possession in the circumstances to be narrated hereafter. The said bank accordingly brought this suit on 2nd October 1937 for possession of the said area of land included in Jote No. 114/1. There was an alternative prayer, namely for "compensation and mesne profits," in case it cannot for any reason get possession.

(3.) Mobarak Ali and his successors-in-interest, Nilambar, Santinidhan and Nitya Ranjan could not reclaim the whole area of Jote No. 114/1. By the end of 1929 only 437.29 acres had been cleared and brought under cultivation. The remaining area of 701.43 acres was uncleared. A portion of this unreclaimed area of 701.43 acres, namely 464.05 acres was then covered with forest and the remaining portion namely 237.38 acres was the site of forest-clad hillocks. Some time in the year 1924 or 1925, (the exact date or year does not appear from the record nor is the precise date material) a survey and settlement under Chap. 10, Bengal Tenancy Act, was started. This survey and settlement is called the revisional settlement in this suit. In the course of that survey, the area reclaimed and the area not reclaimed were surveyed and mapped separately. We have mentioned above the area that was found to have been cleared and brought under cultivation and the area still unreclaimed. The area unreclaimed portion was classified in the manner indicated above. The area reclaimed namely 437.39 acres and the area of 237.38 acres of unreclaimed lands were recorded in the draft khatian in the name of Santinidhan and Nritya Eanjan and the remaining area of unreclaimed land, namely 464.05 acres was recorded in the khas khatian of the Government. Under Part 2 of Chap. 10, Bengal Tenancy Act, only the reclaimed area of 437.29 acres was assessed at Rs. 252, a year and in the finally published Record of Eights that area of 437.29 acres was recorded as a separate tenure, Jote No. 96 at a rent of Rs. 252 and was recorded in the names of Santinidhan and Nritya Eanjan and the remaining area, namely 701.43 acres, made up of the aforesaid two blocks of unreclaimed land, namely, 237.38 and 464.05 acres, was recorded as the khas lands of the Government. As the Government had a mind to include the said area of 701.43 acres within a reserved forest, the requisite preliminary notification under Section 4, Forest Act, was issued and duly published and a proclamation inviting claims was duly promulgated in accordance with the provisions of that Act.