DOMAN MIA Vs. GUNARAM MAHATA

JUDGEMENT

(1.) THIS appeal arises out of a suit for declaration of title to and recovery of possession of two plots, Nos. 4590 and 4591, of the last survey. Of the defences raised it is now necessary to refer only to one. Plot No. 4590 is to the east of plot No. 4591 and immediately to the south of these plots is defendant's plots No. 4610. Defendant's case was that he had prepared a paddy field by reclaiming the land and that the plots claimed by the plaintiff, 4590 and 4591, notwithstanding that they were recorded in the record-of-rights in the plaintiff's name, really belonged to the defendant. The defendant was not able to establish his title to the plots claimed by the plaintiff; but the learned advocate for the defendant, who is the appellant before me, has urged that on the finding of the lower Courts that the defendant had reclaimed the land and prepared a paddy field, the defendant was entitled under S.64, Sub-section (3) and Section 67, Chota Nagpur Tenancy Act, to have a right of occupancy in the land reclaimed by him and falling within plaintiff's plots Nos. 4590 and 4591. In support of this contention the learned advocate has cited Rahamali Kalal V/s. Chintamon Kumar 1917 Pat 248, a decision of Atkinson, J. which was followed by Ross, J. in Second Appeal No. 89 of 1925 Akshay Mandal V/s. Phalari Bhumij and applied to a case where the plaintiffs were sthitiban raiyats and not Zamindars of the village at all and also a decision of Allanson, J., Lal Sahi Palian V/s. Deba Munda 1928 Pat 87, in which that learned Judge pointed out that the word used in Section 64, for the person who converts land into korkar is "cultivator," not "raiyat" and that a landlord is not the same as a proprietor, so that a tenant may also be a landlord as defined in Section 3 (xiv) of the Act. On these rulings it seems clear that by his reclamation of portions of plots Nos. 4590 and 4591, though it involved a trespass on plaintiff's land, the defendant has acquired an occupancy right in the portions reclaimed. The learned advocate for the respondent has endeavoured to distinguish the rulings referred to on the ground that in some of them the suit was brought at the instance of the zamindar and that an occupancy raiyat cannot under Section 64 of the Act be himself a landlord without the meaning of the Act. These considerations, it seems to me, are no longer open in view of the authorities which the learned advocate for the appellant has been able to cite and which were not brought to the notice of the lower Court. The korkar right as such was not pleaded in the written statement, but it was definitely urged in the Court of first appeal, and there were allegations in paras. 18 and 19 of the written statement which clearly raised the question: cf. Parashram Deogharia V/s. Pratap Udai Nath 1921 Pat 506. There are also findings of the lower Courts as regards the factum of the reclamation. The learned Munsif says:. It cannot be denied that the defendant has really prepared a paddy field in the disputed land and probably the work of reclamation is still in progress.

(2.) THIS must be taken with the fact that from 1926 onwards disputes have been going on between the parties resulting in a criminal case in 1926 and a title suit in 1928 which was withdrawn with leave to bring a fresh suit on the same cause of action. The learned District Judge on appeal also finds that the defendant has been re-claiming the land of his plot No. 4610, and in doing so has encroached upon the disputed plots which belonged to the plaintiff and that the Commissioner who was deputed in the case has found, notwithstanding the evidence adduced on behalf of the defendant that he had re-claimed the land of his own holding only, that the defendant had encroached upon some portions of plots Nos. 4590 and 4591 belonging to the plaintiff. The learned District Judge held that in spite of this reclamation the defendant had no right to the portion encroached upon, and for this view he gave three reasons, which are all covered by authorities cited by the learned advocate for the appellant. It is clear therefore that this appeal must succeed. Difficulty has however arisen by reason of the fact that the Commissioner's nomenclature is unintelligible with reference to his map and that neither of the advocates before me has been able to show from the Commissioner's report and his map what portions of plots Nos. 4590 and 4591 exactly have, according to the Commissioner, been converted into a paddy field. The only course open to me, in these circumstances, is to allow this appeal, set aside the decree of the lower Courts and direct that the plaintiff's title be declared in respect of such portions of plots Nos. 4590 and 4591 as may appear not to have been reclaimed. For this purpose it will be necessary to send the case to the trial Court, and it will be open to that Court to recall the Commissioner and ascertain from him in the presence of the parties, after a further deputation, if necessary, what portions of these plots exactly he found converted into a paddy field. The learned advocate for the respondent suggests the addition of the words "by the defendant". But in the first place that would not be within the competence of the Commissioner, and, secondly, having regard to the character of the plots and the course of litigation, so far it is quite clear that the reclamation of conversion to korkar has been by the defendant only. There will be no order for costs about the hearing in this Court, and no party will pay any costs to the other in respect of the hearings in the lower Courts so far; but the costs of the further hearing in the trial Court will be in the discretion of that Court.