KALA DEVI Vs. KHELU RAI

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against a decision of the Additional District Judge of Dumka affirming a decision of the Subordinate Judge, Deoghar.

(2.) This suit, brought for declaration of title to and recovery of possession of land, formerly belonging to one Chuto Rai, was based on the assertion that the plaintiffs, Jaleshar and Binode are the nearest agnates of Chuto Rai and are his heirs. The Courts below have held that defendants 1, 3 and 4 are also agnates equally closely related to Chuto and have, therefore, granted the plaintiffs a decree for recovery of joint possession of the property to the extent of a two-fifths share. This finding, being a finding of fact, is not challenged before us, and that relates only to plot No. 735, in respect of which the Courts below have held that defendants 7 to 9 have acquired permanent tenancy rights therein, and have decreed in the plaintiffs favour possession as landlords to the extent of a two-fifths share in the rent payable by these defendants. The contention of the appellants is that, under the law obtaining in the Santal Parganas, defendants to 9 could not obtain the right claimed by them, that, they are, therefore, trespassers, and the plaintiffs are entitled to khas possession of plot No. 735 to the extent of a two- fifths share.

(3.) Defendants 7 to 9 are holding under a kurfa settlement made by Chotu Rai in the year 1338 B.S. (1921 22 A.D.). The appellants rely upon S.27, Sub-secttion (1), Santal Parganas Settlement Regulation, 1872 (Regulation in