KADER BUX PATWARI Vs. SALIMUDDIN HAZI

JUDGEMENT

(1.) These appeals arise out of a suit for recovery of khas possession of, on declaration of the plaintiffs title to, two plots of land described in schedule gha of the plaint, and also for mesne profits.

(2.) The plaintiffs case as laid in the plaint was that the disputed land appertains to a kayemi ryoti holding comprising 7 kanis of land, which the plaintiffs formerly held under one Hasanali and now under one Salemuddi Haji and others; that the defendants or some of them dispossessed the plaintiffs from a part of the disputed lands in Jaistha, 1312; that consequently the plaintiffs instituted a suit under Section 9, Specific Belief Act on 18th November 1905, obtained a decree and in execution thereof recovered possession on 20th January 1907; that they then remained in possession till Ashar 1318 when they were again dispossessed by some of the defendants from a portion, for which they instituted a suit in 1914 which they withdrew on 27 January 1916; and that, emboldened by this, all the defendants combined together and subsequently dispossessed them of the entire disputed land in Magh 1322.

(3.) The defence was that the plaintiffs or their predecessors had no title to the lands, that the lands in suit lie on two sides of a public navigable channel called Bairagir Dona; that on the east of the channel lies chur mandal, a permanently settled estate, and on the west lies chur Mirzamai a, a Government khas mehal. The defendants case was that defendant 1 was occupying certain lands in this locality when on 9 March 1891 one Rai Chandra Kumar Ray Bahadur ana another who were the owners of the superior taluk called Chur Balammara Bandabust Taluk having claimed the lands as appertaining to their taluk and as being part of the reformation of chur Lakshmi in Kismat chur mandal, he attorned to these owners and they granted a lease conferring abadkari jote right to him of 12 kanis of land lying on both sides of the channel; that one Ishan Chandra Tarafdar obtained a bowla lease of the lands on which defendant 1, executed a kaubliyat in his favour on 4 May 1891; that subsequently in 1904 Government made khas a part of the land and called it chur Mirzamara; that since then defendant 1 has been holding the lands on the east as under Ishan Tarafdar and those on the west as under the Government.