ABDUL LATIF Vs. NAWAB KHAJEH HABIBULLA

JUDGEMENT

(1.) This appeal is on behalf of defendants 2 and 7 to 10 in a suit for establishment of title and recovery of possession. The plaintiffs are 32 in number. Plaintiffs 1 to 31 claim title on the basis of a patni taluk granted to their predecessor in interest, Bibi Manjura Banoo by the 13 annas proprietors of Touzi No. 22 of the Tippera Collectorate in the year 1880. The patni kabuliat is Ex. 28, an extract from which is printed at 11-181. It included village Sovarampore, alias Jitrampore. Plaintiff 32 is the proprietor of the remaining 3 annas share of the said estate. The plaintiffs case is that the lands in suit which are described in three schedules, A, B and C, annexed to the plaint are re-formations in situ of their village Sovarampore, on the other side, namely the eastern side, of the river Meghna, which at the time of the that and revenue survey, formed the eastern boundary of their village, but which since then has shifted its course far to the west. According to them the lands in suit began to rise above water from 10 or 12 years before the suit which was filed on 15 September 1925, and the lands of Schedules A, B and C became fit for possession at different times. In the plaint they do not state precisely when the lands of Schedule A became so fit, but in respect of the lands of Schedules B and C the statement is that they "formed and became fit for cultivation 7 or 8 years before the suit." The contesting defendants claim the lands in suit as re-formations in situ of or accretions to the Government Khas Mehal Estate Char Maricha Kandi, Touzi No. 2717 of the Tippera Collectorate. Nos. 7-10 claim under a taluka settlement from the Government, that is, they set up the claim to hold them as permanent tenure holders under the Government under Ex. 21(11-158). Defendant 2 claims that Schedules A and G and a good part of the lands of Schedule B falls within his occupancy holding held under defendants 7 to 10. The other defendants do not appear. The contesting defendants set up an alternative case (para. 38 of the written statement of defendants 7 to 10), that if the lands in suit or any portion thereof do not form a part of Government Estate Char Maricha Kandi, they were in the bed of the navigable river Meghna at the time of the that and revenue survey and they are accordingly the Crown lands of the Government. In that case they say the plaintiffs are to be defeated on the plea of jus tertii.

(2.) In the written statement there is no assertion that no part of Sovarampore was included in Bibi Manjuri Banoo's patni, but the statement is that plaintiffs 1-31 did not purchase the putni, at least they got no title to the said village by their purchase. They say that the lands of Schedule A had formed and had become fit for possession before 1900 and were being possessed by their predecessors since then through their tenants, and that the lands of Schedules B and C had formed and had become fit for possession long before 1910 and were being similarly possessed since they became so fit. They accordingly say that the plaintiffs suit is barred by time; at any rate their title, if any, has been extinguished by their adverse possession. There is a special defence of defendant 2 contained in para. 15 of his written statement. It is that as he has been bona fide holding the lands in ryoti right he cannot in any case be ejected. This defence is founded on the principle laid down in Binadlal prakrshi V/s. Kale Pramanik (1893) 20 Cal. 708 (F.B.).

(3.) For the purpose of determining whether the lands in suit form part of Mouza Sovarampore a Civil Court Commissioner was appointed to relay the relevant maps. He relayed them and reported that all the lands in suit fell within the plaintiffs village Sovarampore. His map is map No. 1 in part II of the map volumes. In his map he has shown the position of the river Meghna as it was at the time of the that and revenue survey. It is just to the east of the lands in suit. The Subordinate Judge accepted the Commissioner's finding and found that the plaintiffs have title to all the lands. He further found that 326 bighas 15 cottas forming the western part of Schedule B had re-formed after 1916. He gave the plaintiffs khas possession of this area. He further held that the lands of Schedules A and C and the remaining portion of Schedule B had become fit for cultivation within 12 years of the suit and the whole of A and C and a good portion of B was included in the ryoti jote of defendant 2, possibly of defendants 2 and 3, on the footing that defendant 3 was a cosharer of defendant 2. In respect of these portions his decree is that defendants 7 to 10 are not entitled to retain them but that defendant 2 cannot be turned out. He accordingly gave the plaintiffs possession of those lands through defendant 2. With regard to the remaining portion of Schedule B, i.e. the southern portion to the south of Dag No. 192, which he held was not within the jote of defendant 2, he also gave the plaintiffs a decree for khas possession.