NITYANANDA HAZRA Vs. BAKKESWAR TA

JUDGEMENT

(1.) This appeal is against a decision of the Additional Subordinate Judge of Burdwan dated the 20 March 1906. The appeal arises out of a suit brought by the plaintiffs for joint khas possession with the defendants as owners of 9 annas odd gun da share in a tank. Some of the defendants assert that the disputed land was Chowkidari Chakran land and that such portion of it, as was not Chowkidari Chakran land, was leased, out by them to defendants Nos. 5, 6 and 7 who have been in occupation since a portion of the land in dispute silted up in the year 1308.

(2.) The learned Subordinate Judge has dismissed the suit. He has held, following the ruling in Madan Mohun V/s. Rajab Ali 28 C. 223 that the suit cannot proceed; and, secondly , that as the Chakran Commissioner has declared 1 1/2 bighas to be Chowkidari Chakran land and has resumed this area of land, the suit cannot proceed because the plaint does not contain any prayer for setting aside the order of the Commissioner.

(3.) The plaintiffs appeal and it has first been contended on their behalf that the ruling in Madan Mohun V/s. Rajab Ali 28 C. 223 is no authority for holding that a suit like the present shall not proceed; and secondly, that the Chakran Commissioner's decision relates only to 2 bighas of the tank with a rent of three annas, whereas the tank is in area 50 bighas, and because the Chakran Commissioner has declared 1 1/2 bighas of the tank to be Chakran land, this is no reason why the suit should not proceed with respect to remaining 48 1/2 bighas. We think that these pleas must prevail The ruling in Madan Mohun V/s. Rajab Ali 28 C. 223 appears to us to have no application whatever. That was a case in which a co-sharer landlord in exclusive possession of a waste plot of land with the permission of the other co-sharers had leased it out to a tenant who improved it without any objection on the part of the other co- sharer landlords and it was held that it was not open to the latter to obtain khas possession of the land so improved jointly either with the lessor or with the tenant. But the facts of this case are quite distinct from the facts of that case. In this case the land, which has silted up, has been leased out by the defendants only since 1308 and so within three years of the institution of the suit. There is, therefore, no bar of limitation. Then the lessees of the defendant landlord have not in any way improved the silted up portion of the tank. The defendants only proceeded to cultivate it and the plaintiffs in this case have never stood by and allowed the defendants to improve the land or to do anything which would render it inequitable for the plaintiffs to obtain khas possession of the land. In appears to us that the cases of Radha Proshad Wasti V/s. Esuf 7 C. 414 : 9 C.L.R. 76 and Snrendra Narain Sinha V/s. Hari Mohan Misser 33 C. 1201 are authorities for holding that a suit of this nature can proceed.