DURGARAM CHAUDHURY Vs. AMRITA CHANDRA GOSWAMI

JUDGEMENT

(1.) This appeal has arisen out of a suit brought by the plaintiffs-respondents in the Court for declaration that the lands specified in schedule (fed) and (ga) to the plaint were Dharmottar lauds of Dihina Satra, and that the defendants Nos. 1, 2 and 3, appellants in this Court, had no title to those lands. In the suit, prayer was also made by the plaintiffs for confirmation of their possession in those lands, on behalf of the Dihina Satra of which they were the Adhikars, and for recovery of possession of the lands described in schedule (oma) to the plaint. The claim in suit was resisted by the defendants Nos. 1 to 3.

(2.) The history of the property in litigation has been given in the judgment of the learned Subordinate Judge in the-Court below, in some detail, and it is not necessary to refer to the early history of the same as the decision arrived at by the Court below that the property was the subject of religious endowment, was not and could not be disputed on the materials on the record. The Dihina Satra existed from ancient times, and on the material before us, it may be taken to be established that it exists even now. The plaintiffs case before the Court was that the property belonging to the endowment was not in any way affected by the various changes in the character of its ownership and possession, during the period commencing from 1876 to 1906. The property in litigation was, in 1876, covered by the potta No, 1131 granted by the Government of Assam. In course of time the lands covered by that potta were settled by the Government under potta No. 0/535 and 58/54 and pota No. 1/69. The last of these settlements was effected with Abhoyram Chaudhuri the predecessor-in-interest of the defendants Nos. 1 to 3 sometime previous to the year 1906, the Government jamabandi of 1905-06 showing Abhoyrsm Chaudhuri as the pattadar. The pottas to which reference has been made, granted by the Government, were what are known as Nisikheraj pottas in Assam, and having special incidents attaching to them under the Assam Land and Revenue Regulations. The question of the original title of the plaintiffs to the lands in suit, covered by the pottas mentioned above, which from 1876 onwards, covered an area of 476 bighas 1 kotta and 19 lessas, is not in controversy in this appeal. The question for consideration in the appeal is the one arising out of the two points raised in issues in the case: Does the land even now retain its character of a trust property ? Is the suit barred by limitation, as indicated by Issues Nos. 5 and 8 in the suit ? These points arose directly upon the pleadings of parties, regard being specially had to the case stated in para. 12 of the written statement of the contesting defendants, the appellants in this Court. The plaintiffs suit is barred by limitation. From the time of the defendants father's purchase of the lands in the aforesaid manner, they were in enjoyment and possession of the lands in. property rights, openly and without opposition till 1323 B.S., after realising every year the rents at the full Government rate from the plaintiffs and all other like tenants in possession. The plaintiffs and pro forma defendants and other tenants in possession, having acknowledged Abhoyram Chaudhuri as them proprietor, used to pay him rent without objection and used to live and possess the lands under him as tenants. In this way his rights were perfected by his possessing the entire 476 bighas 1 kotta and 19 lessas of suit lands for 21 years adversely to others. Under the Circumstances, even if the Dihina Satra or anybody else had any right and title, the same were extinguished and were barred by limitation. They (the defendants) are paying the Government revenue every year.

(3.) The Court below, on consideration of the materials on the record, came to the conclusion that the plaintiffs in the suit were entitled to a declaration of their title to 97 bighas of land out of the entire estate, as it was not shown that the adverse possession of Abhoyram Choudhury, the predecessor-in-interest of the defendants Nos. 1 to 3 "has fixed up on any definite plot". Direction was given by the Subordinate Judge that In partitioning out those 97 bighas, the block should be so formed as to include within this area, the Satra premises, the namghar and other houses. The possession of this area was to be delivered to the plaintiffs after such severance from the entire estate; such a division is equitable and will be just in the circumstances of the case.