ABAY CHARAN SEKHAR BABU Vs. IBRAHIM MIAN

JUDGEMENT

(1.) In the Record of Rights which was published on 2 March, 1923, the plaintiffs were recorded in respect of a mukarrari tenure in khewats 8/1 to 8/3 at a jama of Rs. 10-8-0 per annum under one Bisessar Babu. They were also recorded in respect of khewats 6 and 7/1 and 7/2 on rents of Rs. 5 and Rs. 3 respectively under the defendants. They sued for a declaration that the latter entry is wrong and that the lands recorded in khewats 6 and 7/1 and 7/2 are in reality part of the lands held by them on a rent of Rs. 10-8-0 under Bisessar Babu and which have been recorded in khewats 8/1 to 8/3. They based their title on a jalsasan sanad dated 12 Asarh 1281 B.S. and on another document of 1285 by which the grant of 1281 was confirmed. By the sanad of 1281 Bisessar granted a chak of waste lands to one Binand Mia, the ancestor of the plaintiffs. The lands were described as lying within certain boundaries. Hasil lands lying within these boundaries were expressly excluded from this grant.

(2.) The first Court found that in 1281 the chak belonged, in equal shares, to three brothers, namely, the grand-fathers of Bisessar and the defendants Nityananda and Keshab, and that consequently Bisessar had no right to settle all the lands within the chak. The sanad was held to grant only such of the waste lands as belonged to Bisessar and, as the Court was not satisfied that such lands included the disputed lands, the plaintiffs suit was dismissed. The plaintiffs appealed to the District Judge who reversed the decision of the trial Court. The defendants have preferred this second appeal. The first point that has been raised by the learned advocate for the appellants is that the decision of the lower appellate Court is vitiated by reason of a misreading of the grant of 1281.

(3.) It is argued that the learned District Judge appears to have been under the impression that by the grant of 1281 all the lands comprised within the boundaries mentioned in the sanad were granted to the plaintiffs and appears to have lost sight of the fact that the hasil lands were expressly excluded. I have been unable to ascertain from the judgment of the learned District Judge or from the argument that has been addressed by the learned advocate for the appellants that the learned District Judge was under any such misapprehension.