JITENDRA KUMAR PAL Vs. DEBENDRA CHANDRA SAHA

JUDGEMENT

(1.) This appeal is on behalf of defendant 124 and relates to the greater portion of plot No. 2, the eastern portions of plots Nos. 3 and 4 which are to the east of what has been shown in the commissioner's map as a silted up khal and to plots Nos. 10 and 26 of the plaint. There is also a memorandum of cross-objection by the plaintiffs-respondents, which relates to plot No. 1 of the plaint. The suit is a suit for khas possession in respect of 82 plots of land described in detail in the plaint, and the principal defendants 190 in number. The plaintiffs-respondents are the heirs of one Dianatram Saha and one Sitaram Saha, two important names in these proceedings. The basis of their claim is that Dianat and Sitaram, whose heirs the plaintiffs- respondents are, were assignees from the purchasers at a revenue sale of the residuary share of Taluk Hamid Raja, touji No. 54730-2 of the Sylhet Collectorate. The plaintiffs-respondents accordingly say that they are entitled to have the said estate free from all encumbrances and in the same state in which it was at the time of the permanent settlement, and that the defendants can no longer retain possession of the parcels of land which are in their respective possession. The defendants fall into several groups, each group being in possession of specific plots of land independently of the others. One suit has been brought on the allegation that the defendants in conspiracy arid in collusion with each other have kept the plaintiffs out of possession. No such conspiracy or collusion was however proved; and the Court below has held that as common questions of fact and law were involved, the suit could not be thrown out on the ground of misjoinder of parties and causes of action. This part of the judgment has not been challenged before us.

(2.) While the suit was pending in the Court of first instance, many of the defendants compromised with the plaintiffs and only some contested the suit. In this appeal, we are only concerned with the claims of defendant 124, and in the connected appeal No. 22 of 1934 with the claims of defendants 71 to 73. The lands of Taluk Hamid Raja No. 54730/2 are distributed over 33 mouzas, one of them being Sultan Mahmudpur, the village with which we are concerned in this and the connected appeal. This village was surveyed by the Thak Amins in 1860. The lands of many other Taluks, e.g. Kaim Raja, Madan Raja, are also included in this village and shown as separate Chaks in the Thak map, the residuary Chaks of the map representing the lands of Taluk Hamid Raja No. 54730/2. On the basis of an application made on 17 July 1882, by Hara Kumar Pal represented by his guardian (Ex. 3 H, p. 11, part 2) a separate account being separate account No. 7, was opened in respect of a small parcel of land, and the rest of the lands of Taluk Hamid Raja No. 54730/2 thereafter came to be known as Taluk Hamid Raja No. 54730/2 (residuary) which for brevity's sake would hereafter be called Taluk Hamid Raja (residuary). Taluk Hamid Raja (residuary) was sold for arrears of revenue on 10 September 1913. After an unsuccessful attempt to set it aside, the sale was confirmed on 8 December 1914, and possession was delivered by the Collector to the auction-purchasers on 15 January 1915. The ostensible purchasers at the aforesaid revenue sale were 7 in number. Their names and the shares which they had, according to the plaintiffs, are as follows:

(3.) Between the years 1915 to 1917 Dianat and Sitaram purchased, either directly or through an intermediary, the rights of the aforesaid purchasers at the revenue sale. The admitted facts are these : The total area of Taluk Hamid Raja (residuary) in Mouza Sultan Mahmudpur is 38 hals odd. This area was originally owned by two ladies, Lakshi Dasi and Bishaka Dasi, the former having 12 annas share and the latter 4 annas share. On 11 May 1901, out of Lakshmi's 12 annas share an 8 annas share therein was sold to three groups of persons, namely (1) Dianatram Saha and Sitaram Saha, (2) Ram Charan Saha and Hridoy Saha and (3) Prokash Chandra Saha (Ex. O, p. 29, part 2). Ram Chandra's representative was Rajani and Prokash was a member of a Hindu family with Sarat and Kamini and in this purchase Prokash purchased for Sarat and Kamini also. It is also admitted that by this purchase Sitaram and Dianat acquired 3 annas, Ram Chandra and Hridoy 3 annas and Prokash the remaining 2 annas share. In the year 1905, on different dates these three groups of proprietors created patnis in respect of their respective shares over 24 1/2 hals of land in the said village, Dianat and Sitaram granted a patni of their 3 annas share to Sarat, Prokash and Kamini. A2 annas and 4 pies share of this patni came back by purchase to Dianat and Sitaram and the remaining 8 pies share passed by transfer to one Sukdeb Namasudra, who was a party defendant to the suit but is not a party to the appeal before us. We shall hereafter call this patni created by Dianat and Sitaram as patni No. 1. Hriday and Rajani gave their share in patni to one Sarat Chandra Deb. This patni vested by transfer in Dianat and Sitaram. This patni we shall hereafter call patni No. 2. Likewise, Sarat, Kamini and Prokash gave a patni of their share to Dianat and Sitaram. This patni we shall hereafter call patni No. 3.