RAM KRISHNA BERA Vs. BEJOY KUMAR ADDYA

JUDGEMENT

(1.) These two appeals have arisen out of a final decree in a suit for partition. The, facts necessary to be stated for the purposes of these appeals are the following: In 1899, the predecessors of the parties to these suits jointly took a lease of a large quantity of land in the Sundarbans which were bounded on the east and also on the west by two rivers. Being subject to the fluvial action of these rivers, the lands necessarily were liable to charge in their extent. 12 annas share of the lands was taken lease of by one Madan Mohan Jana in the name of his Benamdar one Radha Gobinda Jana and the remaining 4 annas share thereof was similarly taken lease of in the name of one Raj Krishna Bera. After the lease was obtained, there was a sort of rough and ready division of the lands between the owners, presumably in accordance with their respective shares, and thereafter a Bheri on embankment being put up as indicating the line of demarcation between the two divided shares, the parties went on reclaiming the lands which at that time were covered with Kala jungle. In 1904 Madan Mohan Jana sold his 12 annas share of the lands to the Adhyas, the predecessors of the plaintiffs in the suit. In the kobala by which this sale was made it was stated that the total area of the lands was 3,440 bighas, that the lands had been acquired in the shares of 12 annas and 4 annas, and thereafter the following declaration was made by the executant, Madan Mohan Jana: Having got a deed of release executed by my said Benamdar Radha Gobinda Jana in my favour on July 10, 1900, I got my own name registered as Malik under Act VII of 1876, in the Collectorate of this District, in respect of the 12 annas share owned and held by me, on September 7, 1901, and haying got the same amicably partitioned with my co-sharer Raj Krishna Bera, got about 2,580 bighas of land demarcated in my own 12 annas share from the northern side of the Lot, and have been in possession and enjoyment of the same.

(2.) Thereafter in 1916, the successors-in-interest of the aforesaid Raj Krishna Bera who were the owners in respect of the 4 annas share of these lands under the acquisition made as above, instituted a suit against the Adhyas in order to have a partition effected by metes and bounds in accordance with the shares of the two parties in the lands. The suit was framed as resting on an agreement between Madan Mohan Jana and Raj Krishna Bera to the following effect: that as the division that was made by them at the beginning was a rough and ready division because it was not possible or practicable at the time to partition the properties by metes and bounds the lands being full of Kala jungle, a proper partition should be effected after the land were fully cleared and made culturable; and that if upon measurement any co- sharer be found to be in possession of more land than his legitimate share, he should be made liable to give up the excess land in his possession to the other party. The Adhyas, as defendants in the suit, denied this agreement. They asserted in their written statement that a proper demarcation in accordance with the respective shares of the parties had been made after the acquisition and that the embankment had been put up as determining the demarcating line between the two divided shares. It was further stated in that written statement that the parties had always acquiesced in the demarcation and had been in possession of the respective plots which had been allotted to them in the demarcation and had been clearing jungles and constructing Bhiris and so on in their respective portions. It was further alleged in that written statement that the rivers that flow on the eastern and western boundaries of the lands had by their action caused diminution or increment in respect of those lands and that, therefore, a second partition would be unfair. A Commissioner was nevertheless appointed for measuring the lands and as the result of his investigation it appeared that the Beras, the plaintiffs in the suit, were in possession of more lands than legitimately fell to their share. Upon that the Beras very wisely withdrew from the suit. The aforesaid local investigation that was made by the Commissioner opened the eyes of the Adhyas and they thereafter instituted the present suit going back upon the allegation which they made in their defence in the suit of 1916 and alleging that in point of fact there was no partition actually effected in respect of the lands in accordance with the respective shares of the parties and that, therefore, they were entitled to have the lands properly partitioned. The Beras, the defendants in the suit, similarly went back upon their own allegations in the plaint in the suit of 1916 and took up the altitude that there had been a partition duly and properly effected shortly after the lands had been acquired that the parties had been in respective possession of their allotments and that the lands ought not to be partitioned again.

(3.) A number of issues were framed, 13 in all, giving rise to various questions which arose upon the pleadings of the parties. When the case came on for trial, no attempt, however, appears to have been made on behalf of the plaintiffs to establish any of the questions raised in the issue except that on September 9,1929, the date on which the trial of the case took place, they examined one Amulya Krishna Mukherjee who simply deposed that the plaintiffs share in the property in suit was 12 annas and the share of the defendants was 4 annas, that the properties had not been partitioned by metes and bounds, after proper measurement, and that amicably and for convenience of possession the plaintiffs possessed the northern part and the defendants the southern part. This witness was not cross-examined. No other evidence was adduced by any of the parties, but a joint petition was put in by them then and there. Whether this petition was put in after the preliminary decree was passed by the learned Subordinate Judge, as the learned Judge has said in his judgment or not, is a matter which is not very material ; because all the events that took place on that day, namely, September 9, 1929, would have to be taken together in order to find out what exactly was meant by the parties. This joint petition is not very happily worded and a reference to its terms will be made hereafter. For the present it will be sufficient to say that on receipt of this joint petition, the learned Subordinate Judge appointed a Commissioner and asked him to make a local investigation. Such investigation was made and a report was submitted. The learned Judge, overruling the objection that was taken on behalf of the defendants to the report and purporting to follow the suggestion contained in the joint petition, made a decree the relevant portion whereof runs in these words: The Commissioner's report and plan to form part of the decree, The parties do get possession of their respective allotments and do bear their own costs but the Scheme B of the final report be adopted for partition with this modification that the area allotted to the plaintiffs will continue to be held by the defendants as tenants under the plaintiffs on payment of fair and equitable rent which shall be determined in a separate suit. The defendant shall be liable to pay rent from the date of the final report by the Commissioner.