NITAI LAL DUTTA Vs. GOBINDA BHUSHAN SEN

JUDGEMENT

(1.) The facts of the case out of which this appeal has arisen are simple though a number of unnecessary facts and documents brought on the record have made them somewhat complicated and have clouded the real issue involved in it. The suit relates to two pieces of land, being survey plots Nos. 2396 and 2397 situated within the town of Jharia in the district of Manbhum. They are within the area referred in the suit as Manbad which is the barmottar property of some Brahmins who for the sake of brevity may be called the Hazras . After division and subdivision among the Hazras these two plots came to the share of one Ramkumar Hazra, and on his death to the share of his three sons, Raghu, Sibu and Sambhu. It is an admitted fact that these plots along with some other plots of land formed the occupancy holding of one Lochan Dutt the ancestor of defendants 2, 3 and 4, the Hazras being their landlords. After division and subdivision among the descendants of Lochan Dutt, these two plots along with another plot No. 1269 came to be possessed by one Bileshwar Dutt, the father of defendants 2 to 4 as raiyat with an annual rent of Rs. 1-8-0. So far the position is admitted, i.e., defendants 2 to 4 are the raiyats of the three plots 1269, 2396 and 2397 on an annual rent of Rs. 1-8-0, and Raghu Hazra and his brother were their landlords. The plaintiff claims to have acquired from the Hazras mukarrari of plot 1269 along with some other lands under a deed dated 8 October 1913 (Ex. 3). We are however not concerned with that plot as the suit is, as I have said, in respect of the other two plots only. It appears that Raghu Hazra executed a sale deed (Ex. A- l), on 20 January 1917 in respect of all the three plots of land in favour of defendant 1 who is the sister's son of defendants 2 to 4. Thereafter there was the settlement proceeding in which defendant 1 alone was recorded as the landlord of these two plots and the plaintiff was recorded in respect of plot No. 1269. After the settlement operation the plaintiff got a sale-deed in respect of two-thirds of these two plots from Sibu and Sambhu, the two brothers of Raghu who claimed to have that much share in them presumably on the ground that Raghu had no more than one-third share in them. The simple question in this case is whether the defendant 1 acquired any title to the proprietary right in these two plots from Raghu by virtue of the sale-deed (Ex. A-l) dated 20 January 1917, or whether that sale-deed did not operate beyond one-third share of the two plots, the other two-thirds being the property of Raghu's two brothers Sibu and Sambhu, who conveyed it to the plaintiff under Ex. 8 dated 17 February 1925.

(2.) The present suit is for a declaration of the plaintiff's title to the two-thirds share of the two plots on the basis of his purchase from Sibu and Sambhu, and for partition by metes and bounds between him and defendant 1 so as to separate his; two-thirds share from the one-third share of defendant 1 by virtue of the latter's purchase from Raghu alone. The plaintiff also impleaded in the suit the raiyats, defendants 2 to 4, and asked for a permanent injunction against them restraining them from erecting any house upon the land and for an order that any house which may have been built by them upon the land should be removed and in case of failure on their part to do so it should be demolished by the Court. The defence was a denial of the plaintiff's title to the two plots in question. It was claimed to be entirely owned by defendant 1 by virtue of his purchase, from Raghu under Ex. A-l. It was alleged by the defendants that there was a partition among the three brothers Raghu, Sibu and Sambhu and the two plots in suit and, some other land fell to the share of Raghu alone. The learned Subordinate Judge has dismissed the suit holding that the plaintiff had no title and that the suit was barred by limitation. The plaintiff has preferred this appeal. I must state at the outset that the suit seems to me of a very peculiar nature. Two causes of action against two sets of defendants have been combined in one suit. In one suit the plaintiff has sued for a declaration of his title as proprietor in respect of two-thirds of the land against defendant 1 and for partition of his share after a declaration of that title and has also sued the admitted raiyats of the land for an independent relief against them in respect of the house which they have built on it.

(3.) It is again curious that the plaintiff has not confined his relief for injunction and demolition of house on land which may eventually fall to his share after his title be established and his portion separated. He has asked for demolition of house standing on any portion of the two plots. In my opinion the learned Subordinate Judge ought to have called upon the plaintiff to elect. The two claims in the suit were absolutely independent and unconcerned with one another. A suit against an alleged co-sharer for declaration of title and partition has nothing whatsoever to do with a suit against occupancy raiyats calling upon to remove a building from his holding. The suit, in my opinion, ought not to have been tried in this form. The result has been that a number of unnecessary materials were brought on the record which must have prolonged the trial and has in fact unnecessarily prolonged the hearing of the appeal.