CHARU CHANDRA Vs. SNIGDHENDU PROSAD

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff in a suit for apportionment of rent and for possession of C.S. Dag No. 1326 on declaration of the plaintiff's title thereto and for an in- junction. There were two holdings held by Sashi the father of defendants 2 and 3, namely a holding of 9 bighas 13 cottahs bearing a rental of Rs. 47-4-3 and a holding of 8 bighas 2 cottahs tearing a rent of Rs. 40-0-9. Both these holdings were held under defendant 1. On 5- 9-1933 the plaintiff alleges to have purchased 7 bighas 5 cottahs and 8 chattaks of land out of the first holding and 7 bighas and 8 chattaks out of the second holding. In the kobala which was marked as Ex. 1, proportionate rentals of the first and second holdings were stated to be Rs. 85-7-9 and as. 34-10-3. The plaintiff claimed, therefore, to have acquired by purchase from Sashi 14 bighas and 6 cottahs of land at a proportionate rental of as. 70-1-14 gandas. The plaintiff's allegation is that he obtained a kharij of the land acquired by purchase, from the landlord, defendant 1. It is not clear from the plaint whether at the time of kharij the estate of defendant 1 was under the charge of the Court of Wards or not. As the plaintiff failed to get possession of about 18 ecttahs of land he started Title Suit No. 180 of 1938 against Sashi. During the pendency of this title suit, the O.S. record was prepared. Inc. S. Khatian No. 173 a jama of Rs. 70-1-14 gandas was recorded in the name of plaintiff under defendant 1 in respect of an area of only 11 bighas and 12 cottas. The title suit referred to above was decreed thereafter. The plaintiff's ease is that the settlement record of rights was erroneous inasmuch as it failed to record in his name as appertaining to the jama of Rs. 70-1-14 gandas the lands claimed in the title suit as also fehe lands covered by O.S. Dag No. 1326. The plaintiff further alleged that he was in possession of a de licit area of 1 bigha 19 cottas and 8 chattaks. He, therefore, prayed that the rent of the lands should be apportioned and the rent reduced to Rs. 60-15-14 gandas in place of Rs. 70-1-14 gandas. Defendant 1 filed written statement and alleged that the C.S. record was correct and that the plaintiff, did not purchase 14 bighas and 6 cottahs as alleged by him, the area having been misstated in the kobala. Defendants 2 and 3 filed a separate written statement and they denied the plaintiff's title to S.C. Dag No. 1326.

(2.) The trial Court dismissed the plaintiff's claim as regards C.S. Dag No. 1326 and held that the plaintiff was liable to pay the rent of Rs. 59-1-4 gandas in respect of Itema 1 to 13 of the properties mentioned in the plaint. Against she judgment and decree of the trial Court, an appeal was taken by defendant 1. The plaintiff preferred a cross-objection as regards C.S. Dag No. 1326. The lower appellate Court allowed the appeal and dismissed the cross-objection, In the result the plaintiff's suit was dismissed.

(3.) The lower appellate Court has held; (1) that the suit is bad for non-service of notice under Section 80, Civil P.C. (2) that a further sum of Rs. 15 was payable as additional court-fees on the plaint; (3) that the suit was barred under Section 88 (2), Ben. Ten. Act; (4) that the plaintiff had taken possession of the valuable lands of the two tenancies and that there was no reason for apportioning the rent.