NALAKI Vs. ABHAYACHARAN SIL

JUDGEMENT

(1.) This is an appeal by some of the defendants in a suit brought by the plaintiffs, for recovery of khas possession on declaration of their title to a strip of land. There was also a prayer made by the plaintiffs in the plaint, for a declaration of the plaintiffs right of easement to use water by making a ghat in the tank of the defendants, which lies to the north of the land in suit.

(2.) The defence of the contesting defendants to the suit was that the plaintiffs had no title to the land in suit. The right of easement asserted by the plaintiff's was denied by the defendants. It was asserted on behalf of the defendants that the land in suit appertained to their tank and was recorded as cadastral survey plot No. 514, the plaintiff's case being that the land in suit appertained to the plaintiffs homestead which was recorded as cadastral survey plot No. 516. On the pleadings of the parties various issues were raised. The principal issues settled related to the question of the plaintiffs title to the land. The question of limitation was also raised in defence by the defendants, the plaintiffs having been put to the strict proof of their title and to their subsisting title to the land in suit. The Courts below have held that the plaintiffs succeed in making out their title as alleged in the plaint, with reference to the strip of land which is not however the entire quantity of land claimed by the plaintiffs in the suit. So far as the question of possession was concerned the Courts below have concurrently held that the land in suit was "waste land" not in the actual possession of anybody before 1331 B. S. and possession should therefore be taken to have been with the rightful owners, i.e., the plaintiffs. In this appeal the first point argued by the learned advocate appearing for the defendants appellants, was that the plaintiffs title was not specifically and definitely found by either of the Courts below. With reference to the point thus raised in support of the appeal, it must be said that the judgment of the learned Subordinate Judge in the Court of appeal below, is not altogether satisfactory on the question of title regard being had to the manner in which the learned Subordinate Judge has dealt with that question.

(3.) But the judgment of the learned Judge is a judgment of affirmance ; and in affirming the judgment of the trial Court, the learned Judge has expressed himself in this way: that the dispute between the parties was a boundary dispute, and although the report of the commissioner submitted in the case after local investigation was not a satisfactory one, the boundary line dividing the plaintiffs property and the property of the defendants, i.e., cadastral survey plots Nos. 544 and 516, could be determined with reference to the materials placed on the record; and with reference to those materials it has been found concurrently by the Courts below that the plaintiffs succeeded in making out their title to the strip of land to which reference has been made above, although that strip does not wholly correspond with the entire quantity of the land claimed by the plaintiff in the suit, so far as the area was concerned. So far as the strip of land which has been decreed in plaintiffs favour, title has been found, and the boundary between the plaintiffs and the defendants land determined by the Courts below, on the evidence before them ; and it cannot be controverted that the findings and the conclusion arrived at by the Courts below did not amount to a finding on the question of the plaintiffs title as alleged by them in the plaint.