RAGHUMANI ROY Vs. BIBHUTI BHUSAN ROY

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for possession, damages and for mesne profits. The plaintiff's case, briefly stated, is as follows: The disputed land measuring about 1 bigha 15 cottas in area is the Debuttar property of Sri Sri Sridhar Jiu Thakur of the Boys of Tajpur in the District of Howrah. The members of the Roy family are many and four elderly members of the four main branches of the family jointly look after the Debuttar estate, and carry out litigations in respect of the same. If any property appertaining to the Debuttar estate is to be leased out the managing shebaits obtain the consent of all the shebaits residing at Tajpur, and after publication of notice and announcement by beat of drum settle the same. One Golok Moira and his descendants were Chakran tenants of the disputed land under the Debuttar estate. The family of the Moiras gradually became extinct and the last holder surrendered the land and left the village. The land thereafter remained in the khas possession of the Thakur. Defendant 2 was temporarily entrusted with the supervision of the work of the gomasta of the Debuttar property. Taking advantage of his position he got a kabuliyat secretly executed by his own relation, defendant 1, on 8 Baisakh 1336 B.S. in the name of defendants 3, 4 and 5 and the late Lalit Mohan Roy, the four managing shebaits of the Debuttar estate, without their consent and knowledge.

(2.) The other shebaits including the plaintiffs were not aware of this settlement. The kabuliyat was registered on 17 May 1929. Defendant 2 thereafter erected temporary huts on the disputed land and is illegally possessing the same. The rent fixed in the kabuliyat is a nominal rent and the term of the kabuliyat is indefinite. The plaintiffs never accepted defendant 1 as tenants; nor did they authorise the gomastha of the Debuttar estate to grant dakhilas to him. Defendant 2 being himself a shebait acted, in breach of trust, in taking the kabuliyat in the name of defendant 1. The kabuliyat is therefore void. As the shebaits are numerous and as it is not possible to serve the summons on all the shebaits the suit has been brought by two of the shebaits on behalf of the Thakur, under the provisions of Order 11, Rule 8, Civil P. C. The defence of defendants 1 and 2 is as follows: The majority of the members of the Roy family do not reside at Tajpur. As it is not possible to obtain consent of all the shebaits in matters relating to the management of the Debuttar estate the practice is to entrust one shebait residing at Tajpur to look after the Debuttar property. Before any Debuttar property is leased out, his duty is to consult all the shebaits residing at Tajpur and to announce it by notice and beat of drum. The documents however are taken in the names of four persons representing the four main branches of the Roy family. Golak and his descendants held the disputed land at a money rent of Rs. 3. The land became khas after the extinction of Golak's family and in spite of best efforts no tenant was available. At the time of the settlement of the disputed land one Ganesh was entrusted with the supervision of the Debuttar estate.

(3.) There was a pressing need for money for meeting the expenses of many litigations concerning the Debuttar estate. The shebaits repeatedly asked Ganesh to let out the land in kaimi right by taking selami. After consulting defendants 3 to 5 and Lalit Mohan Roy and other shebaits residing at Tajpur, there was publication of notice and announcement by beat of drum about the intended settlement. Bibhuti Roy, son of defendant 2, offered the highest bid, paid a selami of Rs. 201 and took the bandobast at a rental of Rs. 5 in the name of defendant 1; and in accordance with the practice a kabuliyat was taken in the name of the representatives of the four branches of the family. With the money obtained as selami Ganesh met the costs of the litigation relating to the Debuttar property without any objection from any of the Shebaits. The settlement had thus benefited the Debuttar estate. Bibhuti was subsequently added as defendant 2- Ka. He filed a written statement supporting defendants 1 and 2. The other defendants did not contest the suit. The findings of the trial Court are these: (1) No litigation was pending at the time of the settlement. (2) There was no want of money. (3) The practice regarding the settlement of Debuttar land was not followed at the time of settlement. (4) All the managing Shebaits did not consent to the settlement. (5) No selami was paid. (6) The kabuliyat was taken secretly and the settlement was not at all bona fide. On these findings the suit was decreed by the trial Court.