HARISADHAN PATARI Vs. DINANATH BANERJEE

JUDGEMENT

(1.) This is an appeal by the plaintiff and arises out of a suit for khas possession after declaration of the plaintiff's title to the land in suit. The plaintiff's case is that the land in suit consists of two plots with an intermediate plot which belonged to defendant No. 1, that the land in suit together with other lands originally belonged to one Dwarik Patari which he held under a registered kabuliyat executed by him in the year 1296 B.S. at a, jama of Rs. 38 odd, that Dwarik Patari made a gift of the jama lands to the plaintiff in 1318 and that the plaintiff let out the land in suit to one Sidhan Patari who was dispossessed by defendant No. 1 in 1319. The present suit was brought against defendant No. 1 and one Chehiroo as defendant No. 2 to whom the defendant No. 1 let out the lands in 1319. Chehiroo filed a written statement alleging that be held the land originally under Dwarik and that in 1319 he was induced by defendant No. 1 to execute a kabuliyat in his favour, but the land, he said, really belonged to the plaintiff. Defendant No. 1 denied plaintiff's title and the dispossession alleged by him. Defendant No. 1 further alleged that the two plots in dispute together with the intermediate plots really formed one plot and formed part of the jama held by him under the zemindar.

(2.) The Munsif raised a number of issues; but the main issues were two, and they were: (1) Is the plaintiff's claim barred by limitation? and (2) Has the plaintiff any title to the land in suit as alleged in the plaint?

(3.) The learned Munsiff in an elaborate and careful judgment discussed the question of the plaintiff's title and the title of the defendants and found in favour of the plaintiff. He decided the question of limitation also in favour of the plaintiff. Although the learned Munsiff found these issues in favour of the plaintiff, he gave him a decree only for declaration of title but refused to give khas possession on the ground that the tenancy of the tenant Sadhan with whom the plaintiff settled the land in 1318 was still subsisting and, therefore, the plaintiff was not entitled to khas possession of the land. Both parties appealed separately before the Subordinate Judge.