DURGANATH BHATTACHARJYA Vs. HARKISHORE CHAKRABARTY

JUDGEMENT

(1.) This appeal by defendants 1 to 5 arises out of a suit for recovery of possession of some lands which the plaintiffs claim as appertaining to Taluk No. 164 purchased by them at a rent sale in 1906. The facts of this complicated litigation may shortly be given. Under the Maharaja of Tipperah there was a taluk No. 164 standing in the name of one Jay Narain Sarma and called after his name taluk Jay Narain Sarma. This Jay Narain had also a niskar called niskar Jay Narain Sarmar Jay Narain Sarma left two sons Sib Prosad and Ram Gobinda. Sib Prosad had also acquired an agat taluk called agat Sib Prosad Taluk Ram Keshab. Agat taluk has been explained by the learned) Judge in his judgment as meaning: A specific block of land carved out of a taluk. The owner of an agat need not enter into direct relations with its superior landlords, but he pays the proportion of the rent due from him in respect of agat to the owner of the taluk. On failure to pay this due proportion the owner of the taluk has to pay it himself to preserve his taluk from sale, but he can recover the proportion from the agatdar in a contribution suit.

(2.) The taluk No. 164 was sold for arrears, of rent and purchased by the Choudhuries of Markuta in 1863. About 12 years, after they had purchased, one Anandamoyee, widow of one of the three sons of Sib Prosad, brought a suit for recovery of some lands on the allegation that they were sinker lands of Jay Narain Sarma and the a gat lands of agat Sib Prosad. The suit was decreed or compromised by a compromise decree Ex. F. By that decree Anandamoyee got one-third of the lands which she claimed as belonging to niskar Jay Narain,. The other lands claimed in the suit went to the Choudhuries. Thereafter one Gurudas Muhari purchased Anandamoyee's interest in the decree and one Gurudas Barman purchased one- third share, in the niskar belonging to some other members of Jay Narain's family. Subsequently the three parties Gurudas Muhari, Gurudas Barman and the Choudhuries came to an arrangement under which Gurudas Muhari obtained 16 annas interest by transfer from the other parties in 12 specific plots of niskar Jay Narain Sarma. Then Gurudas Barman and Gurudas Muhari respectively conveyed to the Choudhuries their one-third share in the rest of the lands described as niskar in Ex. F, and the Choudhuries thereby obtained an interest in the Niskar land also. Between 1888 and 1894 the defendants purchased in execution of decrees the interest of the Choudhuries which was described in the sale certificates as niskar and agat Sib Prosad. Between 1890 and 1895 Earn Charan and Bhairab Shaha whom we will call the Shahas hereafter purchased in execution of decrees and by private conveyances the interest of the Choudhuries in taluk Jay Narain Sarma. In 1900 the Shahas brought a suit against the defendants father to recover some lands as taluk Jay Narain. That suit was withdrawn. Then in 1906, Taluk Jay Narain Sarma (taluk No. 164) was sold for arrears of rent by the Maharaja of Tipperah and purchased by the plaintiffs. This suit was instituted in October 1918 for recovery of some lands which the plaintiffs claim to appertain to the taluk purchased by them. The defence was that the land in suit belonged to the niskar Jay Narain and agat Sib Prosad and did not form part of the plaintiff taluk. It was also maintained that if they did, the defendants had acquired good title to them by adverse possession for more than 12 years.

(3.) On these facts the learned Subordinate Judge without going minutely into the question of title held that the defendants were in adverse possession of the land for more than 12 years ; and in this view dismissed the plaintiffs suit. On appeal the learned Additional District Judge of Tipperah modified the decree of the trial Court and gave the plaintiff a decree in respect of some plots and remanded the case to the trial Court for enquiring into-the title in respect of some other plots. Defendants 1 to 5 have appealed and it is contended on their behalf that the view taken by the trial Court is correct and ought to be maintained.