BEJOY CHAND MAHATAB Vs. SARAT KUMAR ROY

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff to recover khas possession after declaration of his title of a tank known as Bara Bhatpukur with its banks. The plaintiff's case is that this tank is situated in Mouza Nari and within his zemindari Touzi No. 29b9 of Hughli Collectorate formerly Touzi No. 568 of 24-Parganas Collectorate in respect of 8-annas and in respect of other 8-annas share it was within the zemindari of Maharaj Kumar Tagore under whom Defendants Nos. 5 and 6 were patnidars that the plaintiff was in possession but subsequently Defendant No. 1, as lessee under the Maharaja of Burdwan came into possession-The Burdwan Raj having had the tank recorded as being within Mouza Kallayanpore within its zemindari in the record-of-Rights, which was finally published in 1896. The learned Munsif found that originally the plaintiff with his co-sharers had title to this tank but that by adverse possession they had lost title and, therefore, he dismissed the suit. In appeal before the Additional Subordinate Judge the plaintiff urged that the claim of the Maharaja and his lessee to title by adverse possession had not been proved, the Maharaja in supporting the first Court's decision further urged that the plaintiff had no title to the tank at all and that it had always appertained to his zemindari. The learned Subordinate Judge found in favour of the plaintiff on both these points and the Maharaja of Burdwan, who is Defendant No. 2 in the suit has appealed. No appeal has been filed on behalf of the lessee the successor- in interest of the original lessee Defendant No. 1.

(2.) The facts as to this tank as appear from the findings of fact, which have been arrived at by the lower Court may be briefly stated as follows: It lies just on the boundaries between Mouzas Kallayan-pore and Nari; and when the Thak Survey took place in 1855, there was a dispute as to the mouza to which it belonged. The tank is described by the learned Additional Subordinate Judge as a " mathan " tank, i.e., situated in the midst of fields. It appears to have been covered with weeds and jungles in recent times until is was re-excavated and put in order in about 1907 by Defendant No. 1. In 1855, however, at the time of the Thak Survey as we said, there was a dispute as to which mouza it belonged and on that occasion it was found that it belonged to Mouza Nari, Touzi No. 564 of 24-Parganas Collectorate and not to Kallayanpore Mouza and the Thakbust map was ordered to be corrected accordingly. There is no evidence that after this any act of possession was exercised in respect of this tank; but when the record-of-rights was prepared of lands within the ambit of the burdwan Raj in 1896, it appear; to have been entered in Mouza Kallayanpore and subsequently, in 1901 a pattah was given to the present Defendant No. I, on behalf of the Burdwan Raj for it. After that it would appear that Defendant No. 1, paid some tent. But the finding of fact arrived at by the learned Subordinate Judge is that he did not exercise any act of possession beyond occasional catching of fish and there was no real act of possession openly adverse to the plaintiff exercised by Defendant No. 1, up till about the year 1906, and after that time the Defendant No. 1, did, as a matter of fact, clear out the weeds, re-excavating the tank, and let out some of the banks. Finally, however, in 1916 the plaintiff's servants caught fish in the tank and thereupon Defendant No. 1, brought a Small Cause Court case (being Case No. 488 of 1918) and obtained a decree against the plaintiff for the value of the fish so caught. Thereupon this suit was brought. The learned Subordinate Judge found, as a matter of fact., that in view of the decision of 1855 the title to the tank was with the plaintiff and that since then though there has been this record-of-rights, and though Defendant No. 1 had taken lease from Defendant No. 2, so far back as 19.01, there was no adverse possession by Defendant No. 1 and Defendant No. 2, to the plaintiff till about the year 1907 when, as a matter of fact, the Defendant No. 1 actually cleared the tank and lot out the banks for agricultural purposes. He holds, therefore, that as adverse possession only began to run in 1907, the suit to recover possession was not barred in November 1918 and he, therefore, decreed the plaintiff's suit.

(3.) In this appeal, the first point urged on behalf of the appellant is that the plaintiff has failed to prove his title to the tank; the second point is that the finding as to adverse possession is wrong, that Defendants Nos. 1 and 2 have, as a matter of fact, been in adverse possession for a period considerably more than 12 years from the date of the institution of the suit.