ATUL CHANDRA ROY Vs. SARADA SUNDARI DHUPI

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs in a suit for recovery of possession. Plaintiffs case is that the lands in suit were made over to the defendants to be held by them in lieu of service to be performed by them, the nature of the service being washing of the clothes of the plaintiffs. The land in suit is plot No. 504 and is admittedly the land used for the purpose of growing crops. The plaintiffs, I may state, are the proprietors of Taluk No. 900, Nos. 1 to 3 having two--thirds share therein and Nos. 4 to 7 the remaining one--third share. Of the three defendants who are washermen by caste, only defendant 1 put in a contest. Her only defence appearing from the written statement was that plot No. 504 along with Plot No. 503 constituted an ordinary tenancy held under the proprietors of Taluks Nos. 900 and 728 at a cash rent of Rs. 3 per year. Her case was not that though she and the other defendants had to render service to the landlords, the plaintiffs, the lands were only burdened with service.

(2.) Both the Courts below have held that plot No. 504 appertains to Taluk No. 900 alone and the story of the defendant that she held plots Nos. 503 and 504 at a cash rent under the proprietors of Taluks Nos. 907 and 728 is a false one. The Court of first instance held that it was really a service tenure and inasmuch as the defendants have refused to perform the service, plaintiffs are entitled to khas possession. In that view of the matter the learned Munsiff decreed the suit. Defendant 1 preferred an appeal to the Subordinate Judge. The learned Subordinate Judge agrees with the finding of the learned Munsiff that the land in suit, appertains to Taluk No. 900 alone and that the defence of defendant 1 that it along with plot No. 503 constituted an ordinary holding under the proprietors Taluks Nos. 900 and 728 at a cash rent of Rs. 3 is a false one. But the lower appellate Court starts for defendant 1 a case which she never made in her written statement, a case of which there is no indication either in the judgment of the trial Court. The learned Subordinate Judge held that although no cash money was payable for the occupation of plot No. 504, the defendants had to render service for being allowed to remain in occupation of the same. These services he held were not the sole consideration for this occupation, that is to say, he held that, the land in suit was only burdened with service. For the purpose of coming to this conclusion he relied upon an entry in the record of rights which was put in by the plaintiffs for the purpose of establishing their title to the lands in suit.

(3.) The entry shows that plot No. 504 is included in Taluk No. 900 of which the plaintiffs are the proprietors and the defendants are in possession. The nature of, their interest is described by two words "Karsa Chakran". The learned Subordinate Judge interprets these words to mean a holding burdened with service. I do not agree with the interpretation put by the learned Subordinate Judge on this entry. If that entry has any meaning it means that the lands constituted a service tenure, the character, of the lands being, agricultural lands. I am not however basing my judgment upon the inters pretation put upon the words Karsa Chakran . It may be that these words may have been misconstrued, but that would not be a question of law. I do think that the judgment of the learned Subordinate Judge cannot be supported. because he had no justification to make at the appellate stage for the defendants not only a new case but a case inconsistent with the defence as put forward in the Court of first instance, a defence which has been negatived both by the trial Court and by the lower appellate Court.