SHIB CHANDRA ROY CHOWDHURY; JOTINDRA NATH BOSE; TARAN KRISHNA NASKAR Vs. HARENDRA LAL RAI CHOWDHURY AND JOTINDRA NATH BOSE; HARENDRA LAL RAI CHOWDHURY AND KHOGENDRA NATH BANERJEE; HARENDRA LAL RAI CHOWDHURY AND JOLINDRA NATH BOSE

JUDGEMENT

(1.) The facts have been set out in the judgments of the learned Judges of this Court upon whose difference of opinion the matter has been referred to use as also in the judgment of the Subordinate Judge. It is not necessary to repeat them in detail. The suit is by the plaintiff against six defendants. It was dismissed by the Subordinate Judge as against defendants Nos. 5 and 6 and decreed against the defendants Nos. 1 to 4. On appeal to this Court the learned Judges differed and as there was, therefore, no judgment concurring in, varying or reversing the decree appealed from, it was ordered that the decree of the Subordinate Judge be affirmed and the cross-appeals dismissed, each party paying his own costs. The ease has, therefore, been referred to us for decision under the Letters Patent.

(2.) There are three appeals before us in which the defendants severally are appellants. In Appeal No. 9 of 1917 the 1st defendant is Appellant, in Appeal No. 8 of 1917 the 2nd and 3rd defendants are appellants and in Appeal No. 6 of 1917 the 4th defendant is appellant. In each of the appeals the plaintiff and the defendants other than the appellants are respondents, the 5th and 6th defendants not appearing in any of the appeals.

(3.) The plaintiff is the owner of Taraf Ushpara in Estate No. 52999, formerly part of Touzi 145. In Ushpara there is a Mouza called Gangapur Bagmari. In the western portion of Bagmari there is a mokarrari lease which was formerly held by one Gokulmoni Dassi and is now held by the 1st defendant. The land covered by this lease is the subject-matter of this suit. The plaintiff says that the whole of the lands in suit are his property appertaining to Ushpara No. 2999, and that be is entitled to the entire rent for the land. He brings this suit because in the Record of Rights entries have been made showing not only the plaintiff but also the defendant No. 4 (in respect of Estates Nos. 172 and 173) and the defendants Nos. 5 and 6 (in respect of Estates Nos. 147-1, 147-2) as proprietors of the land in dispute. It also shows that not only defend-ent No. 1 but also defendants Nos. 2 and 3 are in possession as tenants. These last named defendants are tenants of defendant No. 4. The suit has been dismissed as against the defendants Nos. 5 and 6 and we are no longer concerned with them. Estates Nos. 172 and 173 are represented by the 4th defendant. The estate is called the Tardah estate and its owners the Panihati Babus. This estate is to the west of that of the plaintiffs. The western portion of Bagmari abutting it has, so far as it is in cultivation, been recovered from jungle. As the portion of Tardah abutting Bagmari was also jungly, a dispute has arisen as to the ownership of the latids. The suit, therefore, is one as between two Zamindars, namely, the plaintiff and the Tardah proprietors represented by the 4th defendant, and the point in issue is whether the land in suit wholly belongs as alleged to the plaintiff, or whether a portion of it belongs to the proprietors represented by defendant No. 4. It is admitted that the portions of Bagmari called Dasani Bheri and Andharia Bheri belong to the plaintiff but these defendants claim as their own the Bheris known as Jongra and Nazir which are said to be in the possession of defendant No. 1 as their mokurrari tenant, and Puti Babu s Bheri, which is said to be in the possession of their tenants defendants Nos. 2 and 3. All the defendants made common cause to resist the plaintiff s claim. The plaintiff s title to Estate No. 2999 is not in dispute, but whether the lands in suit are part of that estate.