ABHOYA CHARAN SEN Vs. HEM CHANDRA PAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs from a decision of the second Additional District Judge of Dacca dated 4 October 1926 reversing the decision of the Subordinate Judge, 4 Court, of the same place dated 11 December 1924.

(2.) The suit out of which this appeal arises was brought for recovery of rent with cesses and damages after apportionment in respect of a shikmi taluk more fully described hereafter. The rent sued for was for the years 1323 to 1326 B. S. The plaintiff's case, as stated in the plaint, is this. The previous proprietors of touzi, No. 315 of the Dacca Collectorate, having defaulted in the payment of the Government revenue, the mehal was sold and purchased by one Prosonna Coomar Sea in the year 1287 B.S. Prosonna Coomar took possession of the property in due course and thereafter created two tenures by registered pattas one in favour of Nand Coomar Dutt on 21 Baisakh 1289 B.S. and the other in favour of Srish Chandra Das in the year 1290 B.S. Within this Zemindari, there had previously been in existence a tenure in respect of which the present suit has been instituted which was Sikmi taluk of the name of Jagabandhu, Raj Chunder and Raj Coomar Pal and which carried, according to the arrangement between the proprietor and the tenure holders, a rent of Rs. 415 per annum. The main defence of defendants 1 to 6 who along with others are the holders of this tenure is that the plaintiffs are not entitled to get any rent as they (defendants) have been dispossessed from a portion of the demised premises. Their case is that they were dispossessed from about 60 bighas of land by Prosonna Goomar Sen who had leased out the identical chuks which are covered by these 60 bighas to Nanda Kumar Dutt and Srish Ghunder Das as stated above. The Court of first instance gave a partial decree to the plaintiffs. On appeal, the lower appellate Court has dismissed the suit in its entirety.

(3.) The findings of fact on which the lower appellate Court has rested its decision may be briefly summarized as follows. They are (1) that there can be no doubt on the facte on the record that Prosonna Coomar Sen dispossessed the tenure-holders and that he took khas possession of some of the lands of the taluk in question and settled them with Nanda Coomar Dutt and Srish Chunder Das; (2) that there is no dispute that the thak chuks Nos. 42, 43 and 90 which are included in the sikmi patta Ex. A (4) were included in the pattas granted by Prosanna to Nanda and Srish and (3) that Prosonna's conduct was wholly mala fide and that he deliberately dispossessed the Sikmidars from a considerable portion of the taluk. On these findings, the lower appellate Court came to the conclusion that the defendants were justly entitled to a suspension of the entire rent till they are restored to possession of the dispossessed lands since they had been wrongly and deliberately dispossessed by Prosonna from those lands. The consequences of the act of Prosonna in Subletting the tenure to Nanda and Srish will affect the plaintiffs who stand in the shoes of Prosonna, they having purchased Prosonna's interest in the zemindary on 2nd Agharayan 1304 B.S., by a deed of sale. In this view as has already been stated, the plaintiffs suit was dismissed by the lower appellate Court.