RAMCHANDRA SAHA Vs. LAKSHMI KANTA SAHA

JUDGEMENT

(1.) In these appeals the defendants 1, 2 and 3 are the appellants before this Court. The plaintiffs in the two suits out of which these appeals have arisen and defendant 1 are cosharers in respect of the lands in suit. These lands were formerly in the occupation of certain tenants. The latter abandoned their holdings and repudiated their tenancies. It is alleged that during the settlement operations in the district where the lands are situate, defendant 1 got his name recorded as purchaser of the holdings. The Record-of-Rights was finally published on 20 October 1919. The plaintiffs contend that the holdings being non- transferable without the consent of the landlords, defendant 1 acquired no rights whatsoever as against the plaintiffs, and in the events that have happened the plaintiffs are entitled to joint khas possession of the lands in accordance with their shares. The two other defendants are other cosharer landlords of the holdings in question. On behalf of the defendant 1, who is the principal defendant, it was alleged that the holdings in question were homestead lands which had been held by tenants from time immemorial at fixed rents and in enjoyment of permanent transferable rights. It was further alleged that defendant 1 after his purchase of these homestead lands had possessed the same, building pucca structures and making various improvements, and that in the circumstances the plaintiffs were merely entitled to receive rent to the extent of their shares (which the defendant had always been willing to pay) and could not recover joint khas possession of any portion of the lands. The defendant further stated that the plaintiffs were in possession of similar lands acquired from former tenants within the joint taluk without payment of rent to the defendant and that this suit was not maintainable so long as the properties remained unpartitioned.

(2.) The first Court found that the lands in question were homestead lands and that the principal defendant 1 after his purchase had built pucca structures on the lands, constructed walls and raised the level of the lands at the expenditure of considerable sums of money. It was also found that the plaintiffs and defendant 1 had in many instances purchased the holdings of the tenants within their joint taluk and had separately possessed these lands. It was further found that the lands in suit were transferable holdings, that the transfers in favour of defendant 1 were valid and had been recognized by the plaintiffs who were some of the landlords. In the course of his judgment the learned Munsiff observed as follows: I am convinced that after the purchase of the homesteads in suit by defendant 1, the plaintiffs allowed him to possess them peacefully and make improvements for his residence just as defendant 1 allowed the plaintiffs to possess their purchased lands. So long as the parties were on good terms there was no difficulty.

(3.) The learned Munsif, therefore, dismissed the plaintiffs suits, holding that the same were not maintainable. On appeal by the plaintiffs, the lower appellate Court held, reversing the judgment of the first Court, that the holdings in question were not mokarari, that there had been no recognition on the part of the plaintiffs of the transfers in favour of defendant 1, that there was no evidence of the erection of pucca structures to the knowledge of the plaintiffs and that on the abandonment of the holdings in question by the tenants all the cosharer landlords were entitled to the possession of the lands proportionate to their shares. The lower appellate Court held that the plaintiffs were entitled to joint khas possession of the lands in proportion to their respective shares.