SURENDRA MOHAN SINHA Vs. RJENDRA NATH ROY

JUDGEMENT

(1.) THIS is an appeal by the third defendant in a suit for declaration of title to resumed Chowkidari Chakran lands and for recovery of possession and mesne profits. The Subordinate Judge decreed the suit, and his decree has been confirmed by the District Judge. The lands are admittedly situated in Mouza Belsar within the Zemindari of the Maharaja of Burdwan. They were resumed by the Government under the provisions of the Village Chowkidari Act, 1870, and were transferred to the Maharaja on the 23rd July 1900. On the 16th July 1911 the plaintiffs obtained a permanent lease of the lands from the Zemindari but when they attempted to take possession, they were resisted by the contesting defendants who claimed the lands as included in a Patni Taluk held by them under the Maharaja. The plaintiffs thereupon instituted this suit on the 27th January 1912 for ejectment of the defendants as trespassers. The District Judge has held, in concurrence with the Subordinate Judge, that as the Patnidars did not take settlement of the lands from the proprietor of the estate after the conclusion of the resumption proceedings they had acquired no title whatever. The view which has commended itself to the Court below is substantially to the effect that when Chowkidari Chakran lands are enfranchised the Zemindar acquires a new title, and it is incumbent on the Patnidars to ask for a fresh settlement, even though the lands were initially comprised within their Patni. The District Judge has relied upon the decisions in Ranjit Sinha v. Kalidasi Debi 5 Ind. Cas. 205: 14 C.W.N. 527 : 37 C. 57, Rajendra Nath v. Hira Lal 7 Ind. Cas. 554 : 14 C.W.N. 995 and Gopendra Chandra Mitter v. Taraprasanna Mukherjee 7 Ind. Cas. 790 : 14 C.W.N. 1049 : 37 C. 598 in support of this view. We are of opinion that the conclusion of the District Judge cannot be supported in view of the decision of the Judicial Committee in Ranjit Singh v. Kali Dasi Debi 40 Ind. Cas. 981 : 25 C.L.J. 499 : 21 C.W.N. 609 : 32 M.L.J. 565 : 15 A.L.J. 390 : 19 Bom. L.R. 462 : 2 P.L.W. 1 : (1917) M.W.N. 459 : 6 L.W. 101 : 44 C. 841 : 22 M.L.T. 489 : 44 I.A. 117 (P.C.).

(2.) IN this case, the District Judge has found that the lands are included in Mouza Belsar, that the Patni was granted in respect of all the lands in the Mouza and that the Chowkidari Chakran lands, though at the time in the possession of Chowkidars, were not excluded. He has correctly held that, in the absence of evidence to the contrary, the Patnidars must be deemed to have acquired all the interests in the village demised which the Zemindar was at the time competent to transfer. What, then, is the legal effect of the resumption of the lands under the provisions of the Village Chowkidari Act and their transfer to the proprietor of the estate? As observed by the Judicial Committee in Ranjit Singh v. Kali Dasi Debi 40 INd. Cas. 981 : 25 C.L.J. 499 : 21 C.W.N. 609 : 32 M.L.J. 565 : 15 A.L.J. 390 : 19 Bom. L.R. 462 : 2 P.L.W. 1 : (1917) M.W.N. 459 : 6 L.W. 101 : 44 C. 841 : 22 M.L.T. 489 : 44 I.A. 117 (P.C.), the transfer does not create a new estate in the Zemindar, but the estate taken by him under the order is in confirmation and by way of continuance of his existing estate, This position is the logical result of two earlier decisions of the Judicial Committee, namely, Secretary of State v. Kirtibas Bhupati Harichandan Mahapatra 26 INd. Cas. 676 : 42 I.A. 30 : 42 C. 710 : 21 C.L.J. 31 : 19 C.W.N. 65 : 2 L.W. 11;17 M.L.T. l; 17 Bom. L.R. 32 : 28 M.L.J. 457 (P.C.) and Joykishen Mookerjee v. Collector of East Burdwan 10 M.I.A. 16 : 1 W.R.P.C. 26 : 1 Suth. P.C.J. 542 : 2 Sar. P.C.J. 54 : 19 E.R. 879. From this standpoint, Section 51 of the Village Chowkidari Act necessarily leads to the conclusion that where, before the resumption, the Zemindar or those claiming through persons under whom he claims, has or have entered into contracts affecting his existing estate, the rights of third parties under these contracts are preserved. The Zemindar, before resumption, has a subsisting interest in the Chowkidari Chakran land within his estate, and, to use the language of Lord Parker in Ranjit Singh v. Kali Dasi Debi 40 INd. Cas. 981 : 25 C.L.J. 499 : 21 C.W.N. 609 : 32 M.L.J. 565 : 15 A.L.J. 390 : 19 Bom. L.R. 462 : 2 P.L.W. 1 : (1917) M.W.N. 459 : 6 L.W. 101 : 44 C. 841 : 22 M.L.T. 489 : 44 I.A. 117 (P.C.), it is difficult to see why this interest should not be made the subject of a Patni grant. The true legal effect of the resumption and the transfer to the Zemindar is that by these very acts the Patnidars become entitled to hold possession of these lands as part and parcel of their Patni, subject to the liability to pay the new assessment, and, in some circumstances, an additional sum by way of profit. But the question of payment does not touch in any manner the right of the Patnidars to hold possession of the land. There is thus no escape in this case from the position that the Zemindar was not competent to make a settlement with the plaintiff, and that under the grant which the plaintiffs have obtained, they have acquired no right as against the Patnidars defendants. It may be observed that the decision in Kashim Sheik v. Prasanna Kumar Mukerjee 33 C. 596 : 5 C.L.J. 299 : 10 C.W.N. 598, in so far as it ruled that the effect of the resumption and transfer was to grant a new title to the proprietor of the estate, was doubted by this Court in Kazi Newaz Khoda v. Ram Jadu Dey 34 C. 109 : 5 C.L.J. 33 : 11 C.W.N. 201 and Harak Chand v. Charu Chandra Singha 8 INd. Cas. 766 : 13 C.L.J. 102 : 15 C.W.N. 5 and must now be deemed to have been overruled by the opinion of the Judicial Committee in Ranjit Singh v. Kali Dasi Debi 40 INd. Cas. 981 : 25 C.L.J. 499 : 21 C.W.N. 609 : 32 M.L.J. 565 : 15 A.L.J. 390 : 19 Bom. L.R. 462 : 2 P.L.W. 1 : (1917) M.W.N. 459 : 6 L.W. 101 : 44 C. 841 : 22 M.L.T. 489 : 44 I.A. 117 (P.C.). The result is that this appeal must be allowed, the decree of the District Judge set aside and the suit dismissed with costs in all the Courts. We do not decide, however, any question as to the terms under which the Patnidars are entitled to possess these lands under their Zemindar.