SOURINDRA NATH BASU Vs. NIRMAL CHANDRA BANERJEE

JUDGEMENT

(1.) This appeal arises out of a suit for establishment of title and recovery of khas possession of five plots of Ian" A B C D and E described in the plaint said to be appertaining to the plaintiff's tenancy of 2 1/2 bighas bearing a rental of Rs. 2-8-0 under the defendants and standing in the name of Ram Sona Dassi. Both the Courts below have allowed the plaintiff's claim with reference to four plots A C D and B and dismissed the suit so far as it related to plot B. The present appeal by the plaintiffs is accordingly confined to plot B which is a cutcheri bari. The plaintiff's case is that all the five plots in suit were purchased by Ram Sona Dassi (the plaintiff's predecessor) from Bagdi, the original holder of the tenancy, in 1261 B.S. Under the defendant who is the zemindar there was a putnidar by the name of Sristidhar Mondal who took a lease from the plaintiff's predecessor of plot B and had his cutchery bari. Thereafter Sristidhar's successor-in-interest in the putni Rama Nath Burman executed a registered kabuliyat in respect of plots A and B in 1301 in favour of the plaintiff's predecessor and was in possession by payment of rent till he was dispossessed by the defendants in 1908. The plaintiff thereafter obtained a decree against Rama Rath for arrears of rent under the lease and purchased it at auction in execution of rent decree on 3 November 1914. It further appears that the plaintiff's predecessor brought a suit against Sristidhar for rent of plot B but it was dismissed and the decree of d smissal was upheld by the High Court in second appeal. The defendants are the purchasers of the zemindari interest of the property in suit in a revenue sale and subsequently they obtained by purchase the putni right of Rama Nath in the estate, and took possession of the land in suit on 11 January 1908.

(2.) Now as to the plaintiff's title to this property, it has been found by the Courts below that the kobala under which the plaintiff's predecessor Ram Sona is alleged to have purchased among other properties the land in suit from Padu Bagdi was not a genuine document. This finding has not been challenged before us. The position therefore is that the plainiff has no title to this property. The substantial question which has been ably argued by Mr. Chakrabarty on behalf of the plaintiffs is that though he has no title to the land in suit he has by adverse possession against the persons who was entitled to khas possession of the property, obtained a good title to it. This contention is based on the fact that in 1301 the putnidar Rama Nath executed a kabuliyat in favour of the plaintiff a predecessor in respect of the land in suit though actually it belonged to him on that date and remained in possession thereof till 1314 B.S. or 1908 as a tenant under the plaintiffs; and therefore, according to the principle of the decision of the Judicial Committee in the Secy. of State V/s. Krishna Mani Gupta [1902] 29 Cal. 518, the plaintiff obtained a good title by adverse possession as against Rama Nath himself. It may be noted at the start that this case was not made out in the Courts below and there is no sufficient discussion of the evidence bearing upon this point. It is a question which is not free from consideration of facts and it is difficult for us in second appeal to appreciate its true bearing on the facts of this case. But as it has been placed before us as a question of law on the facts found in the case it is necessary to examine it closely. If the ease as set up by the plaintiff namely that in 1301 Rama Nath had the title to the land in suit but he executed a kabuliyat in favour of the plaintiff alleging plaintiff's possession therein and (sic) himself as a tenant in respect thereof and remained in possession of it as a tenant under the plaintiff for a period of more than 12 years by payment of rent, is proved the plaintiff is undoubtedly entitled to succeed on the principle of Krishna Mani Gupta's case [1902] 29 Cal. 518. But the findings of the lower appellate Court do not support the plaintiff's case as put before it. With regard to the kabuliyat executed by Rama Nath in favour of the plaintiffs, the learned Subordinate Judge in the appellate Court makes the following observation: If we accept Rama Nath's said kabuliyat as a genuine and bona fide document, we find that the plaintiff's case is proved to be true in respect of all the sub-plots. There are, however, sufficient reasons for finding that Rama Nath's said kabuliyat was executed under exceptional circumstances and does not support the plaintiff's case in respect of plot B. Hatan Bose (predecessor-in-interest of the plaintiff) was practically in Rama Nath's employ and it was not unlikely that such a kabuliyat was obtained under registration at the instance of an Ammuktear.

(3.) Later on after discussing some evidence on the point and referring to the judgment in a suit which was brought by Rama Nath against the defendants for recovery of the plots A and B in which Rama Nath succeeded in obtaining a decree in respect to plot A but his claim with respect to plot B was dismissed, the learned Judge observes thus: The said judgment shows under what exceptional circumstances Rama Nath's kabuliyat might have been executed and there is nothing in the present suit to suggest a contrary state of things.