SAILENDRA NATH BHATTACHRJEE Vs. BIJAN LAL CHAKRAVARTY

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and it arises out of a suit, commenced by him in the Court of the 1 Munsif at Howrah, for declaration of his permanent tenancy rights in the lands in suit and for a permanent injunction restraining defendant 1 from taking khas possession of the same, in execution of the decree obtained by the latter against the plaintiff's landlords, in Title Suit NO. 466 of 1933. There was a further prayer for declaration that the decrees obtained in Title Suit No. 466 of 1933 as well as in another apportionment suit, being Money Suit No. 140 of 1929, were not binding on the plaintiff. The facts which are material for our present purposes may be stated as follows: The subject-matter of dispute is a small plot of land measuring 4 cottas which is a part of a bigger plot having an area of 25 bighas situated in the town of Howrah and known by the name of Choudhurybagan. The entire Choudhurybagan belonged in rent-free right to four sets of proprietors, to wit the Khan Bhaduris, the Santras and two groups of Lahiris, each of whom had a four annas share in it. At some point of time, the entire property was cut up into two halves by a narrow lane which runs north to south and under an amicable arrangement between the cosharers the eastern half was in possession of the Khan Bhaduris and one group of Lahiris, while the western half was possessed by the Santras and the other group of Lahiris. Within the eastern half, there was a tenancy known as Dolui's tenancy comprising an area of one bigha one cotta of land which existed from unknown time and carried a rental of Rupees 15-12-5 gandas a year.

(2.) The main point in controversy in this litigation is whether the tenancy of the Doluis is a permanent or a precarious one. It appears, that in 1879 this tenancy was held by three brothers, namely, Koilash, Bolorarn and Hari-das who described themselves as sons of Nobin Dolui and grandsons of Krishna Dolui. Koilash and Boloram sold their 2/3rds share in the tenancy to one Gopal Chandra Pal by a kobala which is dated 30 July 1879. The kobala recites that the vendors had mokarari mourashi rights in the land which they had been holding since the time of their ancestor Krishna Chandra Dolui. On 29 March 1898, the other brother, Haridas conveyed his l/3 share in the said tenancy to Sarat Chandra Khan Bhaduri, one of the proprietors, by a kobala which was taken in the name of one Haricharan Manna, an officer of the vendee. There was the same recital in this kobala of the vendors having ancestral mourashi mokarari rights in the land transferred. On 1 July 1899, the 2/3rds share which was acquired by Gopal Chandra Pal was sold by him to the same Sarat Chandra Khan Bhaduri who thus became the 16 annas owner of the tenancy in question. In this kobala also the interest of the vendor was described to be that of a permanent tenant. After Sarat Chandra Khan Bhaduri acquired the entire interest in Dolui's tenancy he started creating a number of permanent sub. leases with regard to different parcels of land comprised in the same. The first sublease, which we are concerned with in this suit was granted to one Sriram Chandra Pal in respect of 4 cottas of land by a potta (EX. 4-A) executed on 3 September 1900, and the grantee was given permanent rights in the land demised. On Sriram's death his interest devolved on his widow Kusum Kumari and on 5 October 1906, Kusum Kumari transferred her interest to Sarat Chandra Khan Bhaduri himself. Thereafter, on 21 August 1907, Sarat Chandra made a fresh mokarari settlement of the same piece of land with Behari Lal Chakravarty, the father of defendant 1, by a potta which is Ex. 4 in the suit. On 6th September 1908, Behari Lal sold his interest to Sridhar Bhattacharji, the predecessor of the present plaintiff. There were two other sub-leases created in the year 1903 and 1906, respectively, which were the subject-matter of two other suits which were heard analogously with the present one. One of these suits was not proceeded with after the first Court's judgment and the other has been compromised in this Court. We are not concerned with these suits in the present appeal.

(3.) In 1906 there was a suit for partition of the entire 25 bighas started by one Umesh Chandra Mukherjee who acquired a 4 annas share in the same by purchase from one group of Lahiris, in the Court of the Subordinate Judge at Howrah which was registered as Title Suit No. 106 of 1906. The Khan Bhaduris who had a four annas share in the Choudhurybagan were defendants 1 to 11 in the suit while Radhika Prosad Lahiri who had also a 4 annas share figured as defendant 12. Defendants 13 to 18 represented the interest of the Santras who owned the remaining l/4 share in the lands. It would be necessary to state here that the 4 annas share of the Santras was originally held by two brothers, Khetra and Tarini, each one of whom had a 2 annas share. Tarini's 2 annas share was vested, at the date of the partition suit, in his two sons, Srinarayan and Jagannath, who were defendants 13 and 14 in the suit. The other 2 annas share which belonged to Khetra devolved at his death upon his two sons, Deb Narayan and Rajnarayan. The 1 anna share of Raj-narayan was sold at an execution sale and purchased by two persons, namely, Kedarnath Mitter and Asutosh Bose, though the name of Kedar alone appeared in the sale certificate. Kedar subsequently executed a deed of release in respect of the half share in favour of Golapmoni, widow of Ashutosh Bose. Deb-narayan's one anna share was mortgaged by him to one Harimohan Pal. After Hari Mohan's death, his widow and heir sold the mortgagee's rights to one Lalit Mohan Yoy. Debnarayan, on the other hand, sold his equity of redemption to one Sarat Chandra Dutt and Sarat again mortgaged this interest to Banku Chatterji. Kedar, Golapmoni, Sarat and Banku were defendants 13 to 18 in the partition suit as representing the 2 annas share of Khetra Santra in the property. Nothing was said in the plaint in this suit as regards Dolui's tenancy and Sarat Chandra Khan Bhaduri who was one of the defendants did not set up his permanent tenancy right in the one bigha one cotta plot comprised in the same. These lands were treated as khas lands of the parties unencumbered by any permanent tenancy. There was a preliminary decree in the suit in pursuance of which a Commissioner was appointed to make separate allotments in favour of the different co-sharers. After the Commissioner submitted his report, objections were taken to it by some of the Khan Bhaduris, and it was contended that in making the allotments the Commissioner had paid no regard to the existing possession of the parties. The Court on hearing the objections set aside the allotments with regard to all the cosharers except the plaintiff and directed the defendants to put in costs for repartitioning the 3/7ths share of the property which belonged to them. These costs were not deposited and the result was that only the plaintiff's 4 annas share in the disputed property was separated and partitioned off and the interest of all the other cosharers remained joint.