WALI AHMED CHOWDHRY Vs. TOTA MEAH CHOWDHRY

JUDGEMENT

(1.) The plaintiff in the action out of which this appeal arises, claims to be the tenant under the Maharaja of Tipperah of 40 drones and odd of land in mouzah Sydabad which was originally bil land, and some of which is now under cultivation, but the rest is waste. The kabuliat executed by the plaintiff bears date the 9 Assar 1306 (Tipperah) which is equivalent to 1896-97. The defendants are the holders of several taluks in the Village, and it is said that they tried to obtain a settlement of the bil lands from the Maharaja and to have them included in their taluk, but failing to do so they commenced to cultivate the lands from Kartick to Poush 1306 (Tipperah), and resisted the plaintiff, when he attempted to obtain possession under his lease. He accordingly brought this suit to recover possession of these lands after declaration of his title.

(2.) According to the plaintiff's case the lands in suit formed originally a part of the lakhiraj property of Mir Buddhan and others in mouzah Sydabad, which was measured and resumed by Government in 1837. The estate was then settled as a permanent kaimi hazuri kharija taluk with the ex-lakhirajdars. The estate was subsequently put up for sale at auction for arrears of revenue, and was purchased by the predecessor in title of the present pro forma defendant the Maharaja of Tipperah. The settlement with plaintiff was made by the father of the present Maharaja. The defendants predecessors held taluks which comprised the whole of the cultivated land in the estate, but the waste or bil land remained in the khas possession of the Maharaja.

(3.) The defendants denied the title of the plaintiff to the lands in suit. They alleged that the Government, after the resumption proceedings, settled the cultivated lands only with the ex- lakhirajdars, and that the settlement only gave the settlement-holders the right to realize the rent from the talukdars for the cultivated lands held by them separately as their taluks. The bil land was never included in the resumed estate, but was held all along jointly by the talukdars. They had been in possession all along by cultivating a portion and by grazing cattle and cutting grass from the rest. They allege that in 1282 B.S. when a portion of the land was taken up for the Brahmanbaria road, the Maharaja expressly disclaimed all title to it as his khas land, and that a title which plaintiff's uterine brother Mouraj Jana Chowdhry then set up to the land as included in a taluk granted to his mother, was, eventually held to be invalid and false. Having failed in that claim and in other attempts to obtain possession of the lands, the plaintiff took the fraudulent and collusive lease under which he now brings the present suit.