KRISHNA CHANDRA GHOSE Vs. RASIK LAL KHAN

JUDGEMENT

(1.) The plaintiff sues for declaration of title to a 9-cotta plot of land and for ejectment. He bases his claim upon a registered kobala executed by one Ramani Dasi, dated the 22nd Jaistha 1292, by which, she sold the southern half portion of a plot of land measuring in all 18 cottas. He complains that the defendants have, under colour of a patta (Exhibit B) alleged to have been granted to their maternal grandmother, Bilas Moyee Dassee, by certain persons hereinafter referred to as the Jugi brothers, dated the 27th Magh 1272, taken possession of a portion of the plot in suit and created structures thereon. The Jugi brothers were tenants under one Beswesar Banerjee. They were in possession of 3 bighas 14 cottas. Their landlord brought a suit in 1866 for enhancement of rent against them and obtained a decree. The landlord asserted that the Jugis held the land without lease and without giving a kabuliyat. The suit was decreed and eventually two of the brothers, namely, Iswar Chandra and Dino Nath "gave up their tenancy." The remaining two brothers Srimanta and Dukhiram then obtained a Settlement in mokurari mourasi of 18 cottas, half of which has now passed on to the plaintiff. It appears that the four Jugi brothers by a deed, dated 27th Magh 1272, purported to create a mokurari jama of 4 cottas out of the plot of about 4 bighas in their possession in favour of Bilas Moyee. The plaintiff s case in the plaint was that these 4 cottas had nothing to do with his 9 cottas and were outside the area. He placed the 4-cotta plot between the southern boundary of his plot of 9 cottas and north of a tank known as the Hansa Tank. The defendants case is that their 4 cottas cover the disputed land.

(2.) In the first Court the following issues were raised relating to this matter: 5th. Has the plaintiff his alleged right, title and interest in the land in suit? 6th. Does the land mentioned in the patta cover the disputed land?

(3.) The learned Munsif held that the plaintiff had established his right to 9 cottas. He held further that the disputed land was not covered by Bilas Moyee s patta relied upon by the defendants. The defendants appealed. The only points submitted before the first Appellate Court were (1) that the plaintiff s title had not been proved, (2) that the lower Court should have found that the disputed land was included in the patta. The learned Subordinate Judge agreed with the first Court in holding that the plaintiff had established his title, but he held that the learned Munsif was wrong in finding that the north bank of the tank was included in the patta. He found that the land lying south of a straight line drawn from the southern corner of Nritya Lal Ghose s land shown in the amin s map, right up to the side of the drain which is to the east of Bantra Road, was the northern limit of the defendants land covered by the patta, and in that view he directed that the plaintiff was to get khas possession of the land lying north of that straight line by demolition of the structures erected by the defendants, but that the plaintiff was not to get khas possession of the land which lies to the south of that straight line, as being covered by patta Exhibit B. It will be seen that the above findings dispose of the issues raised in the case. It appears, however, that the learned Vakil for the plaintiff-respondent in the first Appellate Court, during his argument, contended that the Jugi brothers had no right to grant a mourasi mokurari patta to Bilas Moyee, as they had merely a ticca right, and, therefore, the defendants had not derived any title to the 4 cottas. This was not one, of the issues raised, but the learned Subordinate Judge dealt with this argument and held that when Srimanta and Dukhiram eventually secured a mourasi mokurari right to 18 cottas, and inasmuch as the plaintiff derived his title from them, the plaintiff was estopped under Section 115 of the Evidence Act from denying Bilas Moyee s patta who also derived her title from Srimanta and Dukhiram and their brothers, and that Section 43 of the Transfer of Property Act was also in favour of the defendants. He held that although these Acts had come into force after the patta, the equitable principles embodied in the above sections were applicable. In this Court the main argument has been based upon this portion of the judgment. It is strenuously contended that the learned Subordinate Judge has erred in dealing with the question in this manner.