JAGADESHCHANDRA BANERJI Vs. TAIYAB SARDAR

JUDGEMENT

(1.) The action, out of which this appeal has arisen, was an action for partition of a certain shikmi taluk, which formed the estate of one Bochai Sardar, after whom the taluk was named. There were several defendants to the suit. The plaintiff, Sheik Taiyab Sardar, claimed 5 gandas 2 karhas 1 krant and 10 tils share in the taluk. According to the plaintiff, defendants 1 to 5, who are the appellants before us, namely the Banerjis of Muraparha, have only a six annas share of the taluk. According to the plaintiff, defendants 6 to 9 have got 19 gandas 3 karhas 7 tils share in the taluk. Defendants 10 and 11, according to the plaintiff's case, have got 3 gandas and 1 krant share and defendants 12 to 33 have got 8 annas 10 gandas 2 karhas 3 tils and the plaintiff himself has got 5 gandas 2 karhas 1 krant 10 tils share in the said taluk. The Subordinate Judge has granted a preliminary decree for partition and has directed a commissioner to make the allotments according to the respective shares of the parties.

(2.) Against this decision the present appeal has been brought by defendants 1 to 5 and the contention which has been advanced on their behalf is that the defendants appellants should have been held entitled to a partition of the share which they claimed, namely 14 annas 17 gandas 1 krant and 13 tils share in the said taluk. There is no dispute before us with reference to the share of defendants 6 to 9 and defendants 10 and 11. The dispute therefore really centres round the share of the plaintiff, which has already been mentioned as 5 gandas odd and the share of defendants 20, 22 to 24 and 26 to 33 in so far as this appeal is concerned. There is a cross-objection by some of the defendants who will be named hereafter and which will be discussed later on. The cross-objection is by defendants 12 to 19 and defendants 21 and 25. The cross-objection will be dealt with after we have decided the appeal.

(3.) The two substantial contentions which have been raised before us in this appeal are: (1) that the plaintiff and defendants 20, 22 to 24 and 26 to 33 have failed to make out their title to-5 gandas odd and 6 annas odd shares respectively of the shikmi taluk in question ; and (2) that, even if they have established their title with reference to their respective shares, that title has been extinguished by adverse possession for more than the statutory period. Consequently, it is contended that the plaintiff's claim should have been dismissed and no declaration should have been made in favour of defendants 20, 22 to 24 and 26 to 33. On the other hand, a decree should have been given declaring defendant-appellants title to 14 annas 17 gandas odd share of the taluk. On the question of title, as also on the question of adverse possession, the case of the plaintiff and that of the defendants 20, 22 to 24 and 26 to 33 must be discriminated. We propose to deal in the first place with the contention of the appellants, in so far as the plaintiff's share is concerned, it being observed that the plaintiff and some of the other defendants in the group of defendants 20, 22 to 24 and 26 to 33 have been represented by separate advocates before us. It is to be observed, at the outset, that the Record-of-Rights which was prepared within 12 years of the institution of the suit, which was laid on 24th February 1927, is in favour of the defendants appellants and it shows that they are in possession of 14 annas 17 gandas odd share, which they have claimed by their written statement in the suit. It becomes therefore necessary for the plaintiff to establish that he is entitled to 5 gandas share in this taluk, by offering such evidence as would rebut the presumption arising from the entry in the Reoord-of-Rights, namely the statutory presumption Under Section 103(b) Ben. Ten. Act. The Subordinate Judge has come to the conclusion on a consideration of oral evidence in the case that the plaintiff has established his title to 5 gandas odd share in the taluk.