HUMAYAUN RAZA CHOUDHURY Vs. JYOTIRMOYEE DEBI

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for declaration of title and recovery of possession of certain lands. The plaintiff, who may be called the Rani of Pakur, is the widow of Kalidas Pandey, who died in 1928. The plaintiff is the tenure holder of Mouza Chak Purapara and the defendants are the tenure holders of Mouza Purapara. In the old days between the two Mouzahs ran the river Bhagirathi, Purapara being on the west and Chak Purapara being on the east. In course of time the river shifted over to the east or to the west and thereby threw up lands either side till the boundaries of the two villages have become difficult to ascertain. In the present case the suit lands were divided into three schedules. The Ka schedule lands which were fit for cultivation from before 1914, and the Kha schedule lands which were sandy and not fit for cultivation in 1916 and, lastly, the schedule lands which were under water in 1916 and rose above water thereafter. A Commissioner was appointed and he made a map of the locality. On consideration of all the evidence, the trial Court decreed the plaintiff's suit against the appellant (defendant) holding that the plaintiffs had proved their title to the lands as appertaining to their Mouza Chak Purapara, and that the lands being in possession of cultivating tenants, the plaintiffs would be entitled to receive rent from them. Against that judgment the defendant made an appeal unsuccessfully in the Court of the District Judge.

(2.) The tenants defendants did not appeal. Their position is more or less secure as they will hold as tenants, and it is a matter of not much importance whether they are tenants under the plaintiffs or the defendant landlords. The contest is between the plaintiffs putnidars on the one side and the defendants putnidars on the other. On the question of title, both the Courts below have found that the lands appertained to Mouza Chak Purapara and the plaintiffs are entitled to the same. That finding is not challenged in this Court. As to the Ga schedule lands which rose above the water, within less than 12 years, the learned advocate for the appellants does not press the appeal. But he has strongly urged that both as to the Ka and Kha schedule lands, the plaintiff's title has been extinguished by the law of limitation. Taking first the Ka schedule landes: These were sub-divided in the Court into Ka, Ka-1 and Ka-2, according to the possession of tenants, but it is not necessary at this stage to consider the sub-division. The Ka schedule lands consist of 22 plots in the petty settlement of village Purapara. It has been proved that the defendants Chaudhurys applied for a petty Record of Rights of their Mouza Purapara and work began in 1914 and was finished in 1916. In this petty settlement there was a dispute about the boundary between the two mouzahs, namely Purapara and Chak Purapara. The dispute was raised by the defendants Chaudhurys. It was defended by Miah Shahebs, who were the four annas co-sharers of the tenure of Chak Purapara. It was not defended by the 12 annas co-sharer tenure holder Kalidas Pandey, predecessor of the plaintiff.

(3.) Upon hearing the learned advocates it is clear that Kalidas ought to have defended the matter, but he did not choose to defend it. It appears that shortly before this he had been defeated in a suit by the Chaudhurys against him, and he did not choose to contest the matter further. The dispute was decided on 7 April 1915 by the Assistant Superintendent of Survey. He declared that these 22 plots, constituted in the Ka schedule lands, were part of Mouza Purapara and the defendants were entitled to possession of the same. This decision was made under Section 40, Survey Act.