ABDUL BARI DEWAN Vs. HRISHIKESH MITTRA

JUDGEMENT

(1.) This is an appeal by the defendants against the judgment and decree of the Subordinate Judge of Hooghly at Howrah by which he decreed "the plaintiff's suit with regard to a plot of land situated within the putni mehal named Pir Seranga. The plaintiff's case shortly stated is that the land appertains to the tenancy of one Moti Lal Ghose who was the Naib of the previous putnidar of lot Seranga, and after his death a confirmatory lease was taken in favour of his daughter's sons during their minority by their father. These daughter's sons were expectant reversioners of Moti Lal's estate after the death of his widow. The daughter's sons Moti Lal, who may be described as the Sircars, were in possession of the land in question from whom the present plaintiff purchased the property by a deed dated 14 February 1920. When the plaintiff wanted to take possession of this property there was a dispute raised by the defendants who claimed to be in possession of the property. That dispute led to a proceeding under Section 145, Criminal P.C., and the Magistrate found possession with the defendants and he made an order that they should be retained in possession until the plaintiff established his right to possession in the civil Court. The suit out of which the present appeal arises was for the purpose of establishing the plaintiff's title and for ejecting the defendants. The order of the Magistrate was dated 19 July 1921.

(2.) The defendants in their written statement denied the title of the plaintiff. They contested almost every statement of fact recited in the plaint. Their case was that the land in dispute along with other lands was dedicated as Niskar Pirattar as there was a very ancient foundation known as Hazrat Sultan Pir Saheb. This religious foundation was held in great sanctity by all classes of people in the locality, Hindus and Mahomedans, and a mela used to be held on the disputed land once a year which was frequented by every class of people and shops used to be held, and the income taken for the purpose of the expenses of the foundation. The existence of this mela was admitted by both parties. The plaintiff's case was that the mela was founded by Moti Lal who used to realise the rents from the shopkeepers and after Moti Lal's death his son-in-law Chakku used to supervise the mela and realise the rents and after him the plaintiff's vendors. The defendants denied in their written statement that Moti Lal or Chhaku had any connexion with the mela. The most important question in such a case as this must be, in my opinion, whether the land is within the geographical limits of the village belonging to the zemindari of which a putni was granted to the putnidars, the original lessors, who were alleged to have granted a lease to Moti Lal. If the lands are really within the ambit of the village then the burden of proving that the lands are Niskar Pirattar lands must rest entirely upon the defendants. The latest authority for this proposition is the case of Jagdeo Narain Singh v. Baldeo Singh A.I.R. 1922 P.C. 272

(3.) The learned advocate for the appellants pressed two points strongly for our consideration in support of the appeal. He stated first that the Subordinate Judge had not found the title of the putnidars to the lands, that is to say, whether the lands were within the geographical limits of the putni mehal, and secondly, it was urged that it had not been proved that the disputed lands were included within the pattah in favour of the Sircars upon which the plaintiff based his claim. In opening the case on behalf of the appellants the learned advocate laid great stress upon a fact which he argued was an error of procedure on the part of the Subordinate Judge.