FAROK AHMED MEAH Vs. LALIT MOHAN CHOUDHURY

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs and arises out of a suit which has been pending since the year 1922. The plaintiffs are the owners of a taraf known as taraf Azim Mukim and the defendants are the owners of another taraf named taraf Mahamed Bafi Khansama. Both these tarafs have lands in mouza Fatika in which there is a hat known as the Hazari Hat. The lands of the two tarafs are intermixed at this place so that the Hazari Hat is held on portions of land which appertain to taraf Azim Mukim and on portions which appertain to the other taraf Mahamed Bafi Khansama. There were disputes between the owners of the aforesaid two tarafs which were settled by an agreement executed on 12 Poush 1236 M.B. corresponding to a date in the year 1874. This is a very important document in the case and has been marked as Ex. 3. Even after this agreement, the terms of which we will hereafter examine in detail, disputes between the parties with regard to the realizations from the hat did not end, for in 1890, the parties fell out and again in 1894. It is not necessary for us in this appeal to consider the nature of the disputes between the parties in 1890 and 1894.

(2.) The parties again fell out in the year 1917 and in that year proceedings under Section 145, Criminal P.C., were started and on 18 April 1917, 41 plots out of 42 plots which constituted the hat were attached by the Magistrate under the provisions of Section 146, Criminal P. C, and the said attachment is still in force. The profits of the hat derived from the plots so attached are being realized by the Collector and they are in deposit with him. On 9th January 1922 the plaintiffs filed the suit. In the suit as originally filed the subject-matter was only 40 plots. The plaintiffs prayed for a declaration of their title to some of these 40 plots which they described in Schedule (1) to their plaint, as appertaining to their taraf Azim Mukim. They also prayed for a declaration that these plots should be released from attachment made by the Collector. They further prayed for an injunction to restrain the defendants from interfering with their possession in respect of these plots. The third prayer in the plaint is a prayer which is material for us in this appeal. Therein the plaintiffs prayed for a declaration that they were entitled to half of the moneys which were then lying with the Collector and which would in future be realized by the Collector from the hat till the attachment was withdrawn. In this plaint the plaintiffs did not include another plot which was attached by the Collector, that is plot No. 2 of the Chitta of the Maghi Survey. They did not include also another plot which had not been attached by the Collector but which was included in the hat, namely plot No. 1 of the said Chitta and of which plot the plaintiffs were in possession. The defendants had not at any time challenged the plaintiffs title to taraf Azim Mukim and they have never disputed that the plots claimed by the plaintiffs as appertaining to the said taraf did not really belong to them. The dispute between the parties was with regard to the plaintiffs claim to the money which was actually lying with the Collector or which would come to his hands during the time the attachment would be there.

(3.) The Court of first instance granted the plaintiffs a decree for eight annas share of the same, overruling the defence that that claim could not be maintained unless and until the plaintiffs include in their suit all the plots of the hat, namely plot No. 1 of the Maghi Survey Chitta of which they were in possession and also plot No. 2 of the said Chitta which had in fact been attached by the Collector but which had not been included in the original plaint. On appeal, the lower Appellate Court took the view that by reason of the aforesaid defects raised in the defence of the contesting defendants the suit was not maintainable. Against the decree so passed by the lower Appellate Court, the plaintiffs preferred an appeal to this Court, being appeal from Appellate Decree No. 565 of 1926. A Division Bench of this Court allowed the appeal being of opinion that the suit ought not to have been dismissed on the aforesaid defects but that the plaintiffs should be allowed an opportunity to amend the plaint by including in their suit the said two plots so left out by them. The case was accordingly remanded to the Court of first instance in order that the plaintiffs might amend their plaint. On an amendment of the plaint being made, this Court directed a de novo trial. After the records arrived in the Court of first instance, the plaintiffs amended their plaint by including therein both these plots, namely plots Nos. 1 and 2 of the Maghi Survey Chitta. In the amended plaint they also stated that they were entitled to a moiety share of the moneys lying with the Collector or which may thereafter come into the hands of the Collector, on the basis of the aforesaid agreement, Ex. 3.