DINA NATH SAHA ROY Vs. JADU NATH BISWAS

JUDGEMENT

(1.) These appeals arise out of a suit for possession of an undivided one-fourth share of three villages appertaining to Estate No. 6572 in putni and sardar putni rights.

(2.) It appears that two persons Nilkant and Umakant who were proprietors of a 19 gundas and odd share in Touzi No. 4515 let out their share in 20 villages in putni to plaintiff's predecessor at a jama of Rs. 142-8-0 on the 32nd Sraban 1272. All these 20 villages are situate on the west bank of the river Ghagar. Subsequently on the 23 Bysack 1281 (5th May, 1874) they granted a sadar putni in respect of one-fourth of their 19 gundas and odd share in all the mouzahs of the estate including the 20 villages (which had been previously granted in putni) at a rent of Rs. 25 to the plaintiffs. On the next day (24 Bysack, 1281-6th May, 1874) an ekrar was executed between the lessors and the lessees by which it was agreed that the plaintiff's (the lessees) would remain in possession of 19 gundas and odd share of all lands in the mouzahs and kismats (in the 20 villages) and an additional mouzah Kusla on the west bank of the river Ghagar in their putni and sadar putni rights, and that the lessor would possess the remaining mouzahs to the east of the river. Out of the 19 gundas and odd share which belonged to Nilkant and Umakant, 15 gundas were sold at auction and purchased by one Nanda Kumar who again sold the same to one Iswar Chandra, husband of Rashmoni and the predecessors of defendants Nos. 11-25, After the purchase by Iswar, there was another ekrar, dated 27 August, 1890, between him and the plaintiffs by which the first ekrar was confirmed, and the plaintiffs were in possession of the 21 mouzahs on the west bank of the river on payment of rent. Subsequently, how-ever, Iswar Chandra on the Kartick 1297 (31st October, 1890) granted a sadar putni of his 15 gundas share of all the lands on both banks of the river to the predecessors of defendants Nos. 1 to 10.

(3.) In 1905 the parent estate (No. 4515) consisting of 68 villages was partitioned under the Estates Partition Act into 28 separate estates of which Estate No. 6572 represents the 15 gundas share of Iswar. 4 out of the 68 villages were allotted to Estate No. 6572-three, viz., Dharapasail, Patiljhapra and Chota Dumaria on the east bank, and the fourth Majbari on the west bank of the river. On the 27 December, 1905, the defendants Nos. 1 to 10 settled 631 bighas of Majbari with one Chandra Kumar Mookerjee and Lalit Mohun Mookerjee. The plaintiffs allege that they took possession of the whole 631 bighas of Majbari and its kistmats, but that in the settlement proceedings although the entire lands were at first recorded in their names, as a result of a dispute raised by Chandra Kumar and Lalit Mohun only 36 bighas were recorded in the names of the plaintiffs and the remaining lands were recorded in the names of the latter, and being accordingly dispossessed they brought Suit No. 3 of 1912 for declaration of their putni and sadar putni rights to the entire 631 bighas of lands of Majbari. The suit was decreed on the 15 July, 1913, the Court holding that mouzah Majbari had been allotted to the lessor of the plaintiffs, and relied upon the sadar putni putta of 1281 read with the ekramama. The defendants in that suit appealed, and on appeal the decree of the Trial Court was confirmed on the 3 July, 1914. Then a second appeal was preferred by the said defendants, and while the second appeal was pending the present suit was instituted in respect of 283 bighas being the difference between 914 bighas (to which the plaintiffs lessors were entitled) and 631 bighas for which the plaintiffs obtained a decree in Suit No. 3 of 1912. The present suit was instituted on the 14 April, 1917. On the 28 August, 1918, the second appeal to the High Court was allowed. The material portion of the judgment of the High Court is as follows: It is now undisputed that the estate was held in common tenancy. The proprietors of the 19 gundas share in it had given a portion of their share in sadar putni to the plaintiffs or their predecessors, and it follows that after the partition the tenure held good as regards the lands finally allotted to the share of such proprietors or their successors and only be such lands. That is to say, the interest of the plaintiffs in 20 of the 21 mouzahs, that were the subject of the sadar putni have been extinguished and the tenure holds good as regards the four mouzahs allotted to this share. Before the partition a portion only of the 19 gundas share was, as has just been observed, subject to the sadar putni, since it appears that the 21 mouzahs were a portion only of the undivided estate. Plaintiffs have therefore a right to a share of the rents of the above-mentioned four mouzahs but the extent of that share we do not at present know. All that can be said is that they have a sadar putni interest to some unascertained extent in the four mouzahs allotted to their landlords. The claim that they have put forward to an exclusive interest in one portion of this area, a portion of their own selection, is unfounded and in allowing it the Courts below have taken an incorrect view of the law. " The plaintiffs appear to have relied in the Courts below only on Section 99 of the Estates Partition Act and it is on that basis that they have obtained their decree. But it has been argued in this Court that they can also rely on the terms of the contract under which they held this sadar putni, since, that contract gave them the said interest in mouzahs situated to the west of the river. This contract, however, in so far as it fixed the particular lands that were to be subject to the tenure was extinguished by the partition and by the operation of Section 99 of the Estates Partition Act and the contract cannot asset the plaintiff in securing an interest in any particular land in the new estate.