NARAYAN RAM SAHU Vs. KARTIC SINGH

JUDGEMENT

(1.) The learned Deputy Commissioner in this case has dismissed the plaintiff's claim on two grounds: first, that it was a claim in ejectment and that the plaintiff had not proved himself to be in possession within 12 years; and, secondly, that the defendants were non-occupancy raiyats and therefore could not have been ejected excepting under the provisions of Section 41, Chota Nagpur Tenancy Act which conditions admittedly do not obtain in this case. The only substantial question before us is what is the status of the defendants? They wore inducted upon the land by one of the cosharers during the currency of the thica lease which expired in the year 1336. Very soon after that settlement, the cosharer who was not a party to the Settlement brought an action against the defendant respondents and obtained a decree for joint possession. In the events which happened that decree was not executed, one would imagine the reason being that by the time the execution could have been taken out the thica lease under which the plaintiff in that action had title, had expired. But we are not in possession of facts regarding that and indeed the matter is irrelevant excepting for the purpose of dealing with an argument which was advanced by Mr. De.

(2.) One of the contentions of Mr. De was that although the grant to his clients (the defendants) had been made by one of the cosharers only, it must be inferred from the fact that execution was not taken out in the action to which I have just made reference, that the whole body of the cosharers had subsequently consented to the grant which was originally made by one of the cosharers.

(3.) The reason for that contention is to meet the statement of learned Judges of the Calcutta High Court in two cases to which I shall in a moment make reference, one contained in Vol. 20 and the other in Vol. 25 of the Calcutta Law Reports. But there is no basis for that argument. Whether the whole body of the cosharers had subsequently agreed to the grant by one of the cosharers is undoubtedly a question of fact, and if any inference was to be drawn from the facts of which we are in possession, it would be impossible to come to the conolusion for which Mr. De contends. Indeed the very fact that the action was brought by one of the cosharers against his clients (the defendants) will show that he repudiated the action of his other cosharer. But the facts as found in this case, and which must be the basis of our judgment in this appeal, are that the defendants were inducted upon the land by one of the cosharers only.