GHAMANDI MISSER Vs. JAGARNATH MISSER

JUDGEMENT

(1.) In 1912, the Maharaja of Dumraon brought a Title Suit No. 102, against a large number of tenants of mauza Nagpura in respect of about 675 bighas of newly accreted land. The suit was compromised, the Maharaja admitting the tenancy right of the defendants, and the defendants agreeing to pay rent to him. In 1920 there was a dispute regarding 10 bighas out of the land dealt with in the suit of 1912, and this dispute was dealt with by the Magistrate in a proceeding under Section 145, Criminal P.C., which terminated in an attachment of the land under Section 146. In 1932 the plaintiffs brought the suit out of which this appeal arises, for a declaration that out of the 10 bighas covered by those proceedings under Section 145, plaintiffs 1 and 5 were entitled to 2 bighas 12 kathas 4 dhurs, and plaintiffs 2 to 4 to 5 bighas 13 kathas. Defendant 1 contested the suit and claimed that the entire 10 bighas was his. Defendant 2 claimed a part of the 10 bighas. There were other matters raised below which it is not necessary to state now in view of the limited character of the contentions before me.

(2.) The trial Court came to the conclusion that the plaintiffs had not made out the title they had set up to the land claimed by them. Plaintiffs case was that in 1914 there had been an amicable arrangement, or private partition, between the defendants in the Maharaja's suit, as a result of which the plaintiffs had received and come into possession of the land now claimed by them. The learned Munsif found that this allegation was not made oat. The only other evidence adduced on behalf of the plaintiffs in support of their title to the specific parcel of land now claimed, was a petition of compromise put in before the Magistrate after his order of attachment, and this petition of compromise speaks of plaintiffs 2 to 4 keeping in future 5 bighas 13 kathas, and so on. This petition of compromise was not acted upon by the Magistrate because some of the parties to the proceedings, in particular defendants 3 to 8 who had received 8 out of the 10 disputed Bighas under a mortgage from defendant 1, refused to join. The question thus arose before the learned Munsif whether this compromise could be treated as evidence even though it was not registered.

(3.) The learned Munsif was of opinion that the compromise petition must be taken to be a non testamentary instrument declaring the plaintiffs right of possession for the first time, and that as it was not registered under Section 17(1)(b), Registration Act, it must be excluded from the evidence, the land being worth more than Rs. 100. In this view he dismissed the suit. Plaintiffs appealed, and the Subordinate Judge came to the conclusion that the compromise petition did not require registration because it merely embodied an arrangement between the plaintiffs and defendants 1 and 2, by which they made up the dispute among them regarding the disputed land, so as to release the disputed land from the attachment made by the Magistrate.