DWARKA NATH CHOWDHURY Vs. SHASHTI KINKAR BANERJEE

JUDGEMENT

(1.) The suit oat of which this second appeal arises was instituted by the plaintiffs as shebaits of a certain Thakur to have it declared that the lands in suit appertain to and are comprised within the Mouzah Ghattauri owned and held by the plaintiffs in durpatni right and that the defendants were not entitled to collect a 9-annas share of the rent, of the tenants on the said lands and the plaintiffs are entitled to recover 16 annas rent from the pro forma tenant defendants. They also prayed for possession and that the kabuliat which the defendants have accepted from the tenants in respect of the said land was inoperative and they should recover Rs. 99 as rents wrongfully collected by the defendants by way of mesne profits.

(2.) The Subordinate Judge gave the plaintiffs a decree for 15 bighas odd out of the 32 bighas claimed on a finding of fact based on the measurements and report of a Commissioner that 15 bighas 16 cottahs of the land was actually within the ambit of Ghattauri. He found as a fact that the lands had been included by mistake in a settlement made in 1301 between plaintiffs and defendants to hold the lands in the proportion of 9 to 7 as appertaining to the village of Bhalas in which plaintiffs and defendants were co-sharers in that proportion.

(3.) It was admitted that the arable lands of Mouzah Bhalas had been partitioned among the two co-sharers many years ago, the waste lands, in which the lands in suit are included, being left joint.