BEJOY CHAND MAHATAB Vs. GURUPADA HALDAR

JUDGEMENT

(1.) This is an appeal by the claimant No. 6 against the judgment and decree of the District Judge acting as the Special Land Acquisition Judge on a reference made by the Collector under the Land Acquisition Act as to the apportionment of the compensation paid with regard to the acquisition of certain lands in the suburbs of Calcutta. The claimant No. 6 who was described as the plaintiff in the Court below prayed for the compensation with regard to a certain area of the lands acquired which has now been found to be about 10 cottas as against the claimants Nos. 1 to 5, who had been described as the defendants in the Court below. The real contesting parties were claimants Nos. 1 and 2. Claimant No, 1 claimed to be the owner of the lands in lakheraj right and claimant No. 2, who is the wife of claimant No. 1, claimed the property in her right as mourashi mokurrari holder under her husband, the claimant No. 1. The Collector awarded the entire amount of compensation to the claimants Nos. 1 and 2. The other claimants had no subsisting interest in the property and their position may be altogether neglected. The real contest was between claimant No. 6 as the plaintiff and the claimants Nos. 1 and 2 as the defendants. The learned Judge held that the plaintiff was not entitled to any portion of the compensation and has dismissed his claim. From that judgm en the plaintiff appeals to this Court.

(2.) The learned Judge found that the property was not lakheraj property of the claimant No. 1, but that it was situated within touzi No. 33 belonging to the appellant. The predecessor-in- interest of claimant No. 1 Kinuram Halder, was a tenant on the land under the predecessor-in- interest of the appellant who appears to have been a recent purchaser, at a rent of Re. 1-1 anna 3 pies. The land was originally a tank with its banks which has been filled up by claimant No. 1 five or six years before the acquisition. Although the learned Judge found that the land was within the semindari to the appellant and the claimant No. 1 was a tenant with regard to the land, he dismissed the appellant's claim on two grounds. He held first that the title of the plaintiff-appellant was lost by the rule of limitation, as the claimant No. 1 was in adverse possession of the property for a period exceeding 12 years. He next found that even if the title of the plaintiff-appellant was not barred by limitation, the father of claimant No. 1, Kinuram Haider, was in possession under a permanent tenancy right, and so the plaintiff would only be entitled to a very small sum of money, and that even if he be allowed 20 or 30 times the rent payable, that would be a very Insignificant sum; and upon that view also he held that the plaintiff was not entitled to any part of the compensation. He, therefore, made an order that the award of the Collector giving the entire sum to the claimant No. 2 except a very small amount given to the claimant No. 1 should be supported.

(3.) On behalf of the appellant it was argued that the learned Judge was wrong both in his view that the plaintiff's title was barred by limitation and also with regard to his view that Kinuram and after him Gurupada, the claimant No. 1, had a permanent tenancy right with regard to the land in dispute. The contention on behalf of the plaintiff-appellant was that he was entitled to the whole, of the compensation with regard to the ten cottas of land. On behalf of the respondents, the first point urged was that the learned Judge was wrong in holding that the disputed land fell within touzi No. 33, which is the property of the Maharaja, the plaintiff- appellant, and that the Commissioner's report to that effect ought not to have been accepted by the learned Judge. On that ground the respondents wanted to support the decision of the learned Judge in the first instance. There is, however, considerable difficulty in the way of the respondents to support that contention. The first difficulty is that they have not printed the report of the Commissioner, nor the map prepared by him, nor the chitta which was prepared after the khasra measurement made with regard to the property in question and the surrounding places. In the absence of all these papers the learned Advocate appearing for the respondents tried to support his contention by reading passages from the evidence of the Commissioner and commenting upon them to the effect that the Commissioner's relaying the khasra map with reference to the chitta was unsatisfactory. I do not think that that is the proper way of attacking the measurement made by the Commissioner and also of attacking his report without any reference to the report itself. To my mind it seems that the passages in the evidence of the Commissioner to which reference was made by the learned Advocate were given in answer to questions put by the cross-examining Counsel to the Commissioner with reference to his report, and one can hardly understand those statements without any reference to the report itself. Reading the evidence of the Commissioner as a whole, it seems to me that he made every endeavour to find the true state of things with reference to the map of 1849 (Ex.7) and to the chitta prepared by the Government officials. The khasra was treated by the Commissioner as the thak survey map. An objection was taken on behalf of the respondents here that that khasra map waff not really the thak map. There were no stations in the map and so forth. But these questions about the absence of proper stations in the map or that this khasra could not have been the thak map do not appear to have been specifically put to the Commissioner when he was examined in Court. Nor is it suggested that there is any other thak map with regard to the, locality in question. It does not appear that any objection was specifically taken in the Court below that the local investigation of the Commissioner was erroneous in substance. On the other hand, as the learned Judge observes, the engineer who was employed by the respondents to make a survey of the locality and of the land in dispute said that his map agreed more or less with the Commissioner's map and Smart's plan. I should observe here that the engineer who was employed by the defendants-respondents had not much experience with regard to thak maps, as he himself states that in the course of his long experience as a civil engineer, he had to deal with thak maps on three or four occasions only. His evidence, therefore, as against the evidence of the Commissioner appointed by the Court is really of no value. But as the result of his survey agreed with that of the Commissioner, it is unnecessary to state anything further in detail with regard to the evidence of that gentleman. In my opinion, therefore, the respondents have not succeeded in displacing the finding of the learned Judge that the 10 cottas of land within the premises No. 23(1), Radha-nagor Road, appertains to the plaintiffs touzi No. 33 and are covered to dag No. 22 of the chitta. That being so it follows that the father of the defendant, claimant No. 1, Kinuram, was a tenant on the land and that it was not the lekhemj or brahmattar land of Kinuram. This last proposition has not been contested by the respondents here.