HEM CHANDRA BHADURI Vs. PURNA CHANDRA SARKAR

JUDGEMENT

(1.) The lands that form the subject matter of the suits out of which these appeals arise, are situated in Mauza Jagtala which at one time constituted or formed a part of a Patni Taluk. As a result of a partition by the civil Court, this Patni Taluk was split up into a number of Sahams, and possession was delivered in accordance with the partition thus effected in or about the year 1894. During the pendency of the partition proceedings in the civil Court, one of the co- sharer patnidars, namely Ishan Chandra Sarkar, granted a darpatni lease of his undivided 2? gandas share in the Patni to one Dina Bandhu Bhaduri, and it appears that some of the other cosharer patnidars also granted darpatni lease of their respective shares at or about the same time. As a result of the partition, Saham No. 6 was allotted to the plaintiffs predecessor-in- interest, Ishan Chandra Sarkar, and Dina Bandhu and after his death his sons Saroj Bandhu and Kumud Bandhu, there upon entered into possession as darpatnidars. In consequence however of certain defects in the map and Chitta on which the partition waa based, disputes arose between the darpatnidars of Saham No. 6 and the darpatnidars of the two adjoining Sahams, Nos. 9 and 14 and this dispute formed the subject matter of certain proceedings in the course of the "Petty Settlements" of Sahams Nos. 9 and 14 that were commenced at the instance of the patnidars of those Sahams in or about the year 1904. The final publication of the Record of Rights of Saham No. 9 took place on 27 March 1907 and the final publication of the Record of Rights of Saham No. 14 took place on 24 July 1907.

(2.) In the course of the Petty Settlement of Saham No. 14 certain plots of lands were treated as appertaining to Saham No. 6. and were therefore excluded from the Record of Rights of Saham No. 14. The darpatnidars of Saham No. 14 accordingly instituted proceedings under Section 106, Ben. Ten. Act, with a view to having the Record of Rights corrected, the proceedings in question being numbered as Suits Nos. 1 and 7 of 1908. These suits were decreed by the Assistant Settlement Officer; on 21 March 1908, but were dismissed on 4th April 1910 as a result of appeals to the Special Judge. The result of the order of the Special Judge allowing the appeals ought to have been the exclusion of the lands covered by the suits in question from the Record of Rights of Saham No. 14, but through some mistake the corrections made by the Assistant Settlement Officer in favour of the darpatnidar of Saham No. 14 were allowed to stand with the result that the darpatnidars of Saham No. 14 were somehow able either to obtain possession, or to maintain their existing possession, of the lands in question, in spite of the fact that the settlement records were, (or ought to have been if it had not been for the mistake above referred to) against them.

(3.) In respect of certain other plots of lands which the darpatnidars of Saham No. 6 had unsuccessfully claimed in the course of the settlement proceedings as appertaining to their Saham, the latter instituted two suits in the regular civil Courts for declaration of their title and for confirmation or recovery of possession. One of these suits was instituted in January 1908, and was subsequently renumbered as Suit No. 364 of 1914, while the other one was instituted in March 1913, and was subsequently renumbered as Suit No. 165 of 1914. In Suit No. 364 the principal defendants were the darpatnidars of Saham No. 14 and in Suit No. 365 the principal defendants were the darpatnidars of Saham No. 9, the lands to which these two suits related having been recorded at the Petty Settlements as appertaining, to Sahams Nos. 14 and 9 respectively. These two suits were tried together, and during their, pendency the Patnidar, (viz. the plaintiffs in the present suit or their predecessors-in-interest), sued the Darpatnidars, (viz. the plaintiffs in those two suits), for arrears of rent, and having obtained a decree, they put the property to sale, and purchased it in execution on 19 April 1915. The sale was confirmed on 30 March 1916 and symbolical possession was delivered to the plaintiffs on 12 January 1918. In spite of the fact that the Darpatnidars title had been extinguished by the sale of 19 April 1915 the latter were, for some reason which is not apparent to me, permitted to proceed with their suits which they did but without success; those suits being dismissed by the trial Court on 31 March 1919. It is further a matter for surprise that the Darpatnidars were not only permitted to prosecute their suits after their title had been extinguished but were even permitted to file and to prosecute appeals against the decrees by which their suits had been dismissed. The appeals were partially successful the result being that by its judgment dated 9 August 1920 the appellate Court granted a declaration in respect of a portion of the lands in suit to the effect that the Darpatnidars title had subsisted at the time of the suit but had ceased to exist on 30 March 1916, the latter being the date on which the present plaintiffs purchase in execution of the decree obtained by them had been confirmed. The suits were however dismissed in respect of the Darpatnidars prayer for confirmation of possession or recovery of possession, the reason for this portion of the order being, of course, the fact that the Darpatnidars title had been extinguished during the pendency of the suits. It should further be observed that what the appellate Court actually did was to decide which trijunction point should be adopted in re-laying the Batwara map with a view to ascertaining whether the lands in suit appertained to Saham No. 6 or to Sahams Nos. 9 and 14 as the case might be and to direct that the plaintiffs title be declared to have existed at the time of the suits not in respect of any specified plots of land but in respect of such portions of lands in suit as might be found to fall within Saham No. 6 on the Batwara map being relayed in the prescribed manner.