MEDNI PROSAD Vs. MATADIN PANDA

JUDGEMENT

(1.) This is a plaintiff's second appeal from the decision of the learned Subordinate Judge of Monghyr, reversing that of the Munsif of Begusarai in a suit for possession of an eight anna share in village Bharra.

(2.) The plaintiff alleged that Mahal Naokothi bearing Tauzi No. 780 comprised several villages including Mauza Bharra. Defendants 22 to 24 are the proprietors of this village. Defendants 1 to 20 are proprietors of the other villages in the mahal aforesaid, Defendants 22 and 23 executed a usufructuary mortgage bond in favour of the plaintiff as also of his father in respect of their eight anna share in village Bharra. The plaintiff has been in possession of the eight annas share in village Bharra since 1927 and his father was in possession before that time in pursuance of the sudbharna bond in his favour. The remaining eight annas share in that village continued in possession of defendant 24. The owners of the other villages in the mahal aforesaid started a partition proceeding in theCollectorate, being partition Case No. 31 of 1925-26. The proceedings were referred to one Mr. R.G. Finch for arbitration. In the record-of-rights prepared in or about the year 1902, a special khewat, being Khewat No. 18, was prepared in respect of village Bharra as in possession of defendants 22 to 24. As no mauzawar register had been prepared in respect of the estate in question, the plaintiff or defendants 22 to 24 had not been recorded in the D Register maintained by the Collector. The result was that the recorded proprietors of Mahal Naokothi, Tauzi No. 780 only were parties to the partition proceedings in the Collectorate. The plaintiff and defendant 22 made an application in the Collectorate for the preparation of a mauzawar register showing the interest of the proprietors of Mauza Bharra, which was a part of the estate under partition; but the Revenue authorities refused to prepare such a register, with the result that the partition proceeded and was concluded without the plaintiff or defendants 22 to 24 being parties to the partition. The partition proceedings ended in or about the year 1940, and delivery of possession was given in pursuance of the partition some time in 1940. By the delivery of possession aforesaid the plaintiff was dispossessed by those proprietors who had been allotted village Bharra in their takhtas. Hence the plaintiff sued for possession of his eight annas share in village Bharra on adjudication of his title to the same as the sudbharnadar of defendants 22 and 23. Out of defendants 1 to 21 only defendants 2, 4, 11, 19 and 20 filed one joint written statement, whereas defendants 7 and 8 filed another. Though defendant 21 filed a written statement saying that he had no concern with Mauza Bharra and was, therefore, not a necessary party to the suit, he did not contest the suit at the hearing. By the other two sets of written statements the defendants aforesaid contended inter alia that the suit was bad for defect of parties inasmuch as the plaintiff had impleaded even those persons to whom Mauza Bharra had not been allotted by the Collectorate partition; that the suit was barred by limitation inasmuch as the plaintiff or his predecessors-in-title were never in possession of any share in village Bharra; that the suit was not maintainable in view of the provisions of Secs.25, 27, 99 and 119, Estates Partition Act; and that the defendants to whose takhtas village Bharra had been allotted by the Collectorate partition had taken the same free from all encumbrances, assuming that there was an encumbrance as alleged by the plaintiff.

(3.) The learned Munsif decreed the suit in full, that is to say, granted a decree for possession as also for mesne profits. The contesting defendants preferred an appeal which was heard by the learned Subordinate Judge. He affirmed the findings of the trial Court on questions of fact, that is to say, he agreed with the trial Court that defendants 22 to 24 were the proprietors of village Bharra and that the plaintiff was the sudbharnadar of eight annas interest in that village representing the share of defendants 22 and 23; and that the plaintiff as also his predecessors in-title were in possession of their respective interests in the property. But whereas the learned Munsif was of the opinion that the Collectorate partition, which was concluded completely ignoring the interest of defendants 22 to 24 and the plaintiff, was not binding on them, the lower appellate Court came to the conclusion that the provisions of Secs.27 and 99, Estates Partition Act, were a bar to the suit. In that view of the matter the lower appellate Court dismissed the suit on the preliminary ground that it was not maintainable, but granted no costs to either party. The learned Subordinate Judge also noted that the suit was being dismissed not on merits but on a preliminary ground, and that, therefore, the plaintiff was at liberty to seek his remedy in a properly constituted suit, though he did not indicate as to the nature of such a suit. Hence this second appeal by the plaintiff.