SATYA PROSANNA GHOSE Vs. KALI PROSANNA DAS

JUDGEMENT

(1.) The appeal arises out of a suit for assessment of rent and for recovery of rent for three years and in the alternative for recovery of damages for use and occupation.

(2.) The plaintiff's case was as follows: In Touzi No. 5191 in zamindari right there were 3 shares, - 7 annas, 7 annas and 2 annas. One of these two 7 annas was originally held and stood in the name of Ram Raja Das Choudhuri. The plaintiffs purchased 2 annas 2 gandas share out of this 7 annas zamindari right and got their names registered under Act 7 of 1876. Mouzah Chibtabadi falls within this 7 annas zamindari. At present the plaintiffs own the said 2 annas 2 gandas share, and the remaining 4 annas 18 gandas share belongs to the plaintiffs and the pro forma defendants. These shares have been separately recorded in two Khewats, Nos. 1 and 2. The owners of the 4 annas 18 gandas share granted a sikmi taluki interest of their share of the lands of mouzah Chittabadi to two persons Ram Gopal Sarkhel and Ram Prasad Naridi Bera. This interest eventually passed on to one Bhagaban Chandra Guha. In 1267 a confirmatory lease with regard to the said sikmi taluk to the extent of the 4 annas 18 gandas was granted by the then owners of that interest namely Kirti Ohandra Das, Jugal Chandra Das and Ram Kumar Das. The defendants taking advantage of their sikmi kiterest in the said 4 annas 18 gandas shares have, been possessing all the lands of mouzah Chittabadi and have got themselves recorded in the Record-of-Rights in taluk howla or osat howla right in respect of the plaintiffs share of the lands as well. The plaintiffs therefore prayed for assessment of rent and recovery of-arrears on the footing of the defendants, being their tenants, and, in the alternative, for damages for use and occupation on the footing of their being trespassers. The contesting defendants alleged inter alia that they are not trespassers but that they hold the lands in taluka howla and osat howla right under the 7 annas share of the zamindari and have done so far over 100 years and that the plaintiffs are entitled to get rent on the basis of the patfca by which the sikmi taluk was originally created.

(3.) Both the Courts below have held that the defendants are not trespassers bat have acquired the right to hold as tenants under the plaintiffs. This question need not be Considered any further. The Subordinate Judge held, that the defendants originally; entered, into possession in osat howla right under a osat howla patta, Ex. C, dated 1227 B.S, and that they subsequently acquired the howla and taluka right in the 4 annas 18 gandas share, and as the only material on which fair and equitable rent might be assessed was that afforded by the osat howla patta,. Ex. C, the rates mentioned therein were to be taken as the fair and equitable rates. Proceeding on that basis the Subordinate Judge assessed the rent at the rate of 15 annas per kani with cesses at Rs 66-11-1 per annum and damages at 25 par cent. The Additional District Judge on appeals preferred by both sides held that it is true that the defendants originally came in on the strength of the osab howla pabta aforesaid of 1227 B.S., but that subsequently they obtained the taluki right, by the sikmi taluki patta Ex. C 2 dated 1231 B.S. He held that this grant though made by only two persons namely two out of the five sons of Earn Raja Das Choudhuri should be taken, in view of the confirmatory patta RS. C 11 of 1267 and of the other facts and circumstances, to have been made on behalf of all the sons, and that therefore the defendants were liable to pay at the rate of Rs. 8,8 annas 10 gandas 2 karas 2 krantis per drone as mentioned in that patta with, the same eesses and damages as the Subordinate Judges had given.