NARATTAM DEY Vs. DEBENDRA LAL KHAN

JUDGEMENT

(1.) These two appeals arise out of a suit for khas possession of certain lands described in Schs. Ka and Kha of the plaint on declaration of the plaintiffs title thereto. S.A. 1417 relates to the lands of Sch. Ka. This appeal is not pressed and is therefore dismissed without costs. The subject matter of S.A. 1416 is the land mentioned in Sch. Kha of the plaint. The plaintiffs case, so far as the land of Sch. Kha is concerned, briefly stated, is as follows:

(2.) They are the proprietors of Touzi No. 3070 of the Midnapur Collectorate. Village Brindaban Chawk appertains to this touzi. The lands in suit were Chowkidari Chakran lands of this village. They were resumed by Government in Misc, Case No. 28 of 1917-18 along with other lands and were transferred to the plaintiffs by an order of the Collector of Midnapore, dated 23rd January 1920, under Section 50, Village Chowkidari Act (Bengal Act 6 of 1870). The said order of the Collector was communicated to them on 8 March 1920. Thereafter they attempted to take Khas possession of the lands but were not allowed to do so by defendants 2, 15 and 16 on the allegation that these lands were held by defendants 15 and 16 as tenants under defendant 2. On 7 March 1932 the plaintiffs raised the present suit in the Court of the Subordinate Judge of Midnapur for possession of these lands. They also prayed in the alternative for a deduction of Rs. 15-6-4 from their contribution to the Chowkidari fund payable under the order of transfer by the Collector in case it was held that they were not entitled to get possession of these lands.

(3.) Defendant 1, the Secretary of State for India in Council, did not dispute the plaintiffs right to get khas possession of the disputed lands on the strength of the order of the Collector under Section 50, Chowkidari Act. Defendant 2 pleaded that the disputed lands appertained not to village Brindaban Chawk of Touzi No. 3070 but to village Lakshmikundu within his Touzi No. 572, that they were resumed by Government and transferred to him in 1907 by an order of the Collector of Midnapore under Section 50, Chowkidari Act, and since then he was in possession of these lands through defendant 15 and one Brindaban Chandra Das as his tenants. He also pleaded that the plaintiffs claim was barred by limitation. Defendant 15 filed a written statement supporting defendant 2. The learned Subordinate Judge who tried the suit held that the plaintiffs had title to these lands and that the plaintiffs suit was not barred by limitation. He accordingly passed a decree for possession in favour of the plaintiffs. An appeal was taken by defendants 2 and 15 to the lower appellate Court. The learned District Judge who heard the appeal has found against the plaintiffs both on the question of title and limitation and has dismissed the plaintiffs suit for possession. The plaintiffs appealed to this Court. Two points arise for determination in this appeal: (1) whether the plaintiffs have title to the disputed lands and (2) whether the plaintiffs suit is barred by limitation. The decision of the learned District Judge on the question of title is as follows: If it is found that the lands appertain to Mouza Lakshmikundu then plaintiffs must fail. It should be noted that the lands fall within the geographical limits of Brindaban Chawk. The defendants alleged that they are chitta dags of Lakshmikundu. The only evidence on this point is that they were recorded in the record-of-rights as appertaining to Brindaban Chawk. It may also be said that the proceedings in 1907 are themselves some evidence showing to which mouza the lands appertain. It is difficult to explain how the chowkidari lands of the chowkidars of one village could lie in another village. Therefore, if it is found that the lands lie within the geographical boundaries of that other village, this in itself may be taken as some evidence as showing that they nevertheless appertain to the first village. In my opinion these 1907 proceedings are in themselves sufficient to rebut the evidence of record-of-rights and I hold that the lands appertain to Mouza Lakshmikundu.