AMBICA CHARAN KUNDU Vs. KUMUD MOHUN CHAUDHURY

JUDGEMENT

(1.) This appeal has arisen out of a suit for establishment of plaintiffs nishkar right to and for possession of 4 1/2 bighas of land which is described in Sch. Ka to the plaint. The plaintiffs case was that the land in suit was their ancestral nishkar, that they and predecessors possessed the same for more than 100 years in nishkar right as well as right by adverse possession, that they and their predecessors had paid road-cess and submitted road-cess returns to the Bankura Colteetorate till 1905, when the Collector directed them to pay the cesses to the zemindars, but the latter refused to take the cesses only and insisted on the plaintiffs taking a jamai settlement and that the plaintiffs refused to do so. The defendants resisted the claim by alleging that they had been holding the lands from the time of their father for a period of over 25 years as tenants under the said zemindars and on payment of rent to them.

(2.) The trial Court dismissed the suit, but the lower appellate Court on appeal by the plaintiff reversed that decision and decreed the suit The defendants have preferred this appeal.

(3.) The District Judge found that the documents on which the defendant relied in order to show their tenancy right to the land either did not relate to it or were not reliable, having been created for the purposes of the case, and that the entry in the Record-of-Rights was of little value, its presumptive value having been rebutted by the plaintiffs evidence. He found, on the other hand, on a consideration of the cess challans and certain other documents adduced in evidence on behalf of the plaintiffs to which it is not necessary to refer specifically, that the plaintiffs father held some land in nishkar right in the mouzah. He found, however, that in support of the plaintiffs title by nishkar right in respect of the two plots of which the land Schedule Ka consists, there was no documentary evidence in respect of plot 1, and the only documentary evidence that there was as regards plot 2 were a sale-certificate (Ex. 9) and two kabalas (Exs. 6 and 7) relating to adjoining lands. He found also that the oral evidence of possession of the land of Schedule Ka that was adduced on the side of the plaintiffs was immensely superior to that adduced on the side of the defendants. On the oral evidence coupled with the said documents Exs. 6, 7 and 9, he held that the defendants evidence of possession as to plot 1 was not to be accepted. By this process of reasoning he came to the conclusion that the plaintiffs had succeeded in proving possession of both the plots without payment of rent and from this he inferred that the plaintiffs had a nishkar right to both the plots arid gave the plaintiffs a decree declaring their nishkar right and for recovery of possession.