MOHESH CHANDRA CHAKRABARTY Vs. HEMENDRA NATH SEN CHOWDHURY

JUDGEMENT

(1.) This is an appeal from a ?decision of the Subordinate Judge of Mymensingh, dated the 28 June 1924, which reversed a judgment and decree of the Munsif of Tangail, dated 12th February 1923. The appeal arises out of a suit commenced by the plaintiffs, now respondents, for a declaration of the plaintiff's zemindari right to the disputed lands and for recovery of khas possession. The case as stated in the plaint is that the suit lands were formerly waste lands and appertained to plaintiff's zemindari mouza Garaki and they were subsequently settled with the pro-forma defendants who possessed them and that sometime after the settlement defendants 1 and 2, now appellants, brought a suit against the pro-forma defendants for establishment of title to and for khas possession of the lands now in dispute.

(2.) The pro-forma defendants contested the suit but ultimately they could not continue their defence with the result that defendants 1 and 2, now appellants, obtained an ex-parte decree and in execution of that decree took khas possession of the lands now in suit. This gave rise to the cause of action in the present suit. The defence of defendants 1 and 2 was that the suit lands appertained not to plaintiff's mouza Garaki but to mouza Baradam of the pro-forma defendants. There was a local investigation and after trial the Munsif dismissed the plaintiff's suit holding that the lands appertained not to plaintiff's mouza Garaki but to mouza Baradam. The Munsif also held that the defendants being settled raiyats of Baradam acquired occupancy right to the disputed lands and could not in any event be evicted.

(3.) An appeal was carried by the plaintiffs to the Court of the Subordinate Judge of Mymensingh. The learned Subordinate Judge held on a consideration of the evidence that the lands in dispute fell within the plaintiff's mouza Garaki. He also held that the plaintiffs had been in possession of the disputed lands with in twelve years of suit and that the defendant's possession for a period short of twelve years did not give them any right to resist the suit for possession commenced by the plaintiffs. The Subordinate Judge accordingly allowed the appeal and decreed the plaintiff's suit in part for 3 bighas 19 cottas and 2 chataks of the disputed lands which according to the commissioner's report and map fell within the plaintiff's mouza.