SHYAM SUNDER DAS Vs. LIVANS

JUDGEMENT

(1.) The plaintiff in the suit giving rise to this appeals claimed to have his title declared as the patnidar under defendants 13 and 14, the purchasers of Taluk Syed Natir, sold for arrears of revenue, on 11 January 1919 free from all incumbrances, and to have a decree passed in his favour for khas possession of an eight annas share of the lands in suit. According to the plaintiff, defendants 1 to 12 had no right to be in possession of those lands. In view of amicable settlement between parties concerned effected from time to time it is only necessary to take notice of the defence of defendants 3 to 5 and defendant 11 against whom this appeal is now directed. Defendants 3 to 5 claimed to be in possession as darpatnidar under defendant 2, who was a patnidar by virtue of a series of transfers in respect of 2 karas 2 powas 3 jastis of land out of the area described in the plaint created by defendant 1 Defendant 11 asserted that he was in possession of 1 kara and 1 powa of land in the north-west part of plot 1 and some portion of plot No. 2 described in the plaint, as a tenant with right of occupancy. The defence therefore of these defendants in the suit was that the interest claimed by them were protected from the effect of revenue sale and the plaintiff could not get khas possession of the lands in suit in their possession. The Courts below having given effect to the defence raised by the contesting defendants 3 to 5 and 11 and the plaintiff's prayer for khas possession having been dismissed, the plaintiff appealed to this Court. In view of the nature of the defence set up, the case of defendants 3 to 5 has to be considered separately from the case of the other, defendant, namely defendant 11.

(2.) The estate to which the lands in suit appertain, Taluk No. 54720/1 Syed Natir was sold for arrears of revenue free from all incumbrances previously created thereon by any person other than the purchaser and under the provisions contained in Section 71, Assam Land and Revenue Regulation, 1886, a tenure created bona fide, and at a rent no less than the full amount of the revenue fairly payable in respect of the land could not be avoided by the purchaser. It was necessary therefore for defendants 3 to 5 seeking protection from eviction to establish that the patni and the darpatni under which they claimed to be in possession, were bona fide settlements and that the rent reserved was not less than the full amount of the revenue payable for the lands settled. So far as the rent of the tenure is concerned, it has not been contended before us in this appeal, that the rent of the tenure in regard to which protection was claimed created by the patni patta Ex. 2 was less than the proportionate share of the revenue payable for the lands covered by that patta. The question whether the settlement evidenced by the document Ex. 2 was a bona fide one, was elaborately discussed before the Courts below. On the findings arrived at by those Courts it is impossible for us to come to any conclusion other than the one arrived at by the Court of appeal below that the tenure in question was created bona fide so as to make the provision contained in Section 71, Assam Land and Revenue Regulation applicable to it, in the matter of its protection. On the finding that the person by whom patni was created, Hara Kumar Pal, had acquired title to the lands comprised in the patni by adverse possession, and that he had opened a separate account of estate No. 1050 and in view of the argument that the patni, as created by a trespasser was not entitled to protection after revenue sale, the question for consideration was whether the party claiming as patnidar was bona fide in possession by collecting rent and could the darpatnidars claiming under the patnidar claim to be in the same position. It is no doubt correct to say that the incumbrance which may be set aside under Section 71, Assam Land and Revenue Regulation, includes not merely an incumbrance actively created by the previous holder but also an incumbrance created by the acquiescence or laches either wilful, or arising from negligence and a purchaser at a revenue sale is entitled to avoid an interest acquired by anyone, by adverse possession: see Mohamed Nashim V/s. Kashi Nath (1899) 26 Cal 194.; but the question before us is not avoidance of an interest created by adverse possession; the question being whether the persons claiming to be in possession were persons bona fide settlement holders under the patni and the darpatni created from time to time. The patni in the case before us was created in the year 1299 B.S. and on the findings arrived at by the Courts below we are unable to hold that there was any want of bona fides on the part of the settlement holders in the position of defendant 3 to 5 which could disentitle them from the protection from eviction, afforded by the statute. The argument in support of the appeal so far as they relate to the defence of defendants 3 to 5 in the suit, cannot in the above view of the case, be accepted as sound. The defence of defendant 11 in the suit rested on the basis of his being a tenant who has acquired a right of occupancy in the lands in suit in his possession. The estate to which the lands appertained was sold for arrears of revenue on 11 January 1919; the sale was confirmed on 27 November 1919. The potta in favour of defendant 11, Ex. D in the case, is dated 24 March 1907; and 12 years from the date of the potta was completed a few months after the date of sale but before the confirmation of sale. The settlement as evidenced by the potta was for grazing purposes. It has been found by the Court below that the potta was created in confirmation of defendant 11's jote. As his cosharers surrendered, he executed, kabuliyat for himself only.

(3.) The Court below has further stated that there was no evidence that defendant 11 held the lands comprised in the potta for avocation totally unconnected with agricultural purpose, and that evidence on the re-cord went to show that defendant 11 converted a portion of the lands into paddy land.