UMESH CHANDRA DASS Vs. SIKDAR ALI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff and arises out of a suit brought by him for a declaration of his auction-purchase right in the land in dispute and for khas possession. The plaintiff claimed the land as being Maghi Dag No. 323:1 The defendants said that they knew nothing about the Maghi Dags, but that they had been in possession of the land as forming part of Cadastral Survey Dag No. 2368 under Nil Krishna Roy and others for a period of over thirty years; in other words, they maintained that they had acquired occupancy rights in the land. The Munsif dismissed the plaintiff s suit, holding that it was not proved that the land fell within the Mahal purchased by the plaintiff. That Ending was reversed by the learned Subordinate Judge, but in passing a decree in favour of the plaintiff as to his title the Judge declined to give the plaintiff khas possession of any portion of the land which should be found to correspond with any portion of Cadastral Survey Dag No. 2368. His reason for passing such a decree was that he held that the defendants had a protected interest in the land of Cadastral Survey Dag No. 2368, which they had held for a long period of time. Against that, part, of the decree the plaintiff appeals asking us to say that he ought to have khas possession. In my opinion, the judgment, of the learned Subordinate Judge is perfectly correct. Though he did not actually say that the defendants were occupancy raiyats, still he looked at it from that point of view and said that they had been in possession of it as raiyats for more than twenty years, that they had reclaimed the land and that, therefore, they had ft protected interest. It is argued that before the Judge could come to such a decision, he ought to have found that Nil Krishna Roy and others, under whom the defendants held, had a bona fide belief that the land in suit appertained to that Mahal, that they let the land to the defendant s or their predecessors under that belief and, further, that the defendants also had a bona fide belief that their landlord did own the Mahal to which they thought this land belonged. No question of the bona fides either of the defendants or their landlord appears to hove been raised in the Courts below and the finding of the learned Subordinate Judge, in my opinion, amounts to the finding which the appellant s Pleader asks for, namely, that they did hold it bona fide. If they did not, it is obvious that they could not acquire a protected interest. The appeal must be dismissed with costs. Cuming, J.

(2.) I agree.