RAJENDRA NARAYAN RAI Vs. BHAIRABENDRA NARAYAN ROY

JUDGEMENT

(1.) This appeal arises out of a suit to recover joint possession of certain lands on establishment of the plaintiff's zamindari right thereto to the extent of 3 annas 9 gundas, 1 kag share. The allegations upon which the suit was based shortly stated were that the defendants Nos. 13 and 14 were co-sharers of the plaintiff to the extent of 5 annas 3 karas 3 kags and that the remaining 7 annas 10 gundas share belonged to certain persons sailed the Parsha Zemindars who, how-over, are no parties to this litigation, The plaintiff alleged that the defendants Nos. 13 and 14 had settled the lands in dispute with the defendants Nos. 1 to 12, that the said settlement was unauthorized and that those persons were cultivating the lands and were in possession thereof. He, therefore prayed for recovery of joint possession to the extent of his share as stated above.

(2.) The contesting defendants, namely, defendants Nos. 13 and 14, alleged that, out of the lands in suit, 129 bighas were debuttar of Madan Mohan Thakur, that of the remaining lands, a portion was the debuttar land of Kali Thakurani and another portion was the kamat land of the Parsha Zemindars and, furthermore, that the said Thakur and Thakurani were in possession of the said lands which belonged to them respectively for over twelve years and that, therefore, the plaintiff had no right whatsoever therein.

(3.) The learned Subordinate Judge came to the conclusion that the right in which the defendants Nos. 13 and 14 proposed to hold the lands in suit was a right which they ware relying upon in utter denial of the plaintiff's right, and, in that view of the matter, he held that, although the said defendants were co-sharers of the plaintiff they were not entitled to the protection of the well-known principle of the equity laid down in the case of Watson & Co. V/s. Ramchand Dutt (1891) 18 Cal. 10. He accordingly decreed the plaintiff's suit with costs declaring the plaintiff's right to a 3 annas 3 gundas 1 kag share in the disputed land and awarding him joint possession of the same with the defendants. He also passed an order directing that the plaintiff would get mesne profits to be determined later on the plaintiff's application.