SYED DAD ALI Vs. JAMIRUDDIN SHEIKH

JUDGEMENT

(1.) These three appeals are by the plaintiff. He and one Shufi Khaleque purchased estate No. 1613 of the Burdwan Collectorate at a sale held for arrears of revenue. This Khaleque later sold his share to the plaintiff. The plaintiff then instituted 22 suits in order to obtain khas possession of various portions of this estate. In the three suits with which the present appeals are concerned the defendants are in possession under proprietors of adjoining toujis and their case was that the lands did not appertain to touji No. 1613. They made a further defence that in any case they were protected from ejectment because they took settlement bonafide. It is now not disputed that the lands belonged to the appellant's estate. The defendants however maintained that their case was covered by the decision in Benod Lal Pakrashi V/s. Kalu Pramanik. (1893) 20 Cal 708. The learned Munsif over-ruled this contention and gave the plaintiff decrees. The defendants appealed and the learned Subordinate Judge differing from the learned Munsif came to the conclusion that the decision referred to applied to the present cases. He therefore dismissed the suits. The plaintiff now appeals to this Court and the question for decision is which of the learned lower Courts decided correctly.

(2.) The cases are all cases of encroachment. The defendants are tenants of adjoining proprietors. It is not quite clear whether those proprietors settled the disputed lands or whether the encroachments were made by the defendants themselves. But, in any event, the encroachments would enure to the benefit of the proprietors. On these facts I am clearly of opinion that the decision of the learned Munsif was correct. In delivering the judgment of the Court his Lordship the Chief Justice said this: The possession of the land in question for the purpose of cultivating it was acquired a good many years ago by the defendants from the persons who at that time were in actual possession of the zamindari within which it was situated and who were then the only persons who could give possession of the lands of the zamindari to cultivators.

(3.) It is thus at once apparent that the facts of the present cases are quite different. The persons in actual possession of the zamindari to which the lands appertain were the defaulting proprietors and it was only by means of encroachment that the present defendants were able to get possession. Had the landlords of the defendants been in possession of touji No. 1613 at the time then this decision would have affirmed. The present cases are really similar to the case of Tepu Mahammad V/s. Tefayel Mahammad, 1916 Cal 596.