BHOLA NATH CHATTOPDHYAY Vs. MRITYUNJOY CHATTOPDHYAY

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for confirmation of possession after establishment of title. The plaintiff's case is that the suit land appertained to a tenancy which he held under the superior landlord at a jama of Rs. 9-5-0 and that the defendants are threatening to dispossess him from the disputed land on the basis of an erroneous entry in the record of rights. The defence of the defendants 1 and 2 is that the disputed land is not a part of the plaintiff's tenancy and that even if it be so, the plaintiff cannot claim any title to this property, as he has not purchased the same. The Courts below have found that the Kobala, on the basis of which the plaintiff claims the disputed land, does not include the disputed land and in that view they have concurred in dismissing the suit. Hence the present appeal by the plaintiff.

(2.) The first point urged in support of the appeal is that the Courts below erred in law in holding that in order to determine whether the disputed land is a part of the land purchased by the plaintiff, the boundaries given in the Kobala must prevail over the area. It is urged that the area mentioned in the Kobala is three bighas but the actual area which now admittedly belongs to the plaintiff is much less than three bighas. There can be no doubt, that where the boundaries are vague and indefinite the area should prevail but where, as in the present case, the boundaries are specified and definite, the land that is conveyed must be the land within those specified boundaries and the area must be taken as having been given approximately. The plaintiff must show therefore that the disputed strip of land is included within the boundaries given in this Kobala. In view of the concurrent finding of the Courts below that the disputed strip of land is not included within those boundaries the plaintiff cannot claim title to the disputed land simply because the area-mentioned in the Kobala is in excess of the area mentioned within those boundaries.

(3.) The second point urged in support of the appeal is that the Courts below were not right in disposing of the suit without coming to any finding as to whether the disputed land is a part of the tenancy belonging to the plaintiff's vendor. It is urged that by the Kobala the plaintiff has acquired the right, title and interest of his vendor in the jama and consequently, if it is found that the disputed land is a part of the jama which belonged to the vendor, the plaintiff would be entitled to get it even though it is not included within the boundaries mentioned in the Kobala. I am unable to give effect to this contention. The plaintiff wants his title declared on the basis of his Kobala. The Kobala no doubt mentions a certain area but that must be read subject to what is stated in the boundaries. The recitals in the body of the document cannot be read as divorced from what is stated in the boundaries. Beading the document as a whole therefore it is clear that plaintiff purchased the right, title and interest of his vendor to a certain piece of land which is included within the boundaries mentioned in the schedule to the Kobala. In this view of the matter the Courts below were right in not entering into the question as to whether this is really a part of the tenancy belonging to the plaintiff's vendor or not. Even if it be assumed that it was a part of the tenancy belonging to the plaintiff's vendor, the plaintiff cannot claim any title to this land until and unless he shows that he has actually purchased it.