JINATULLA SARKAR Vs. TAMIJUDDIN MUNSHI

JUDGEMENT

(1.) The suit which has given, rise to this appeal was for a declaration of the plaintiff's title to and for recovery of possession of 6.38 acres of land which originally formed part of a tenancy under a tenure held by certain Roys of Pathrail. The tenure, had been purchased by the plaintiff in a. certificate sale, and his case was that he had obtained khas possession of the lands, thereof, but had been subsequently ousted-by the defendants from the disputed plot. The learned Munsiff decreed the plaintiff's claim for a declaration of title, but dismissed his claim for khas possession. Upon an appeal by the plaintiff the learned Subordinate Judge granted him a decree for khas possession, and it is against that order that the defendants have appealed. For a proper appreciation of the questions involved, it is necessary to set out certain admitted incidents in relation to the tenure and the plot comprised therein which is the subject of dispute.

(2.) The plaintiff acquired the tenure in a certificate sale on 1 September 1925, and the sale was confirmed on 5 October 1925. Possession was delivered on 8 December 1925, and the plaintiff's case was that the lands not being in the possession of any tenants under the Roys but in the khas possession of the Roys themselves, what he obtained was not symbolic but khas possession. This was denied by the defendants-who maintained that they had been in possession as tenants under the Roys and had continued in possession ever since. The plaintiff's case further was that the defendants were never in possession until 1929,. in which year they ousted him after several previous unsuccessful attempts. To return to the admitted facts : In 1925 the plaintiff took proceedings to get his name mutated in the Land Registration Records, and this was opposed by the defendants, but the Collector, holding that they could not maintain their objections in view of the plaintiff's purchase of the interest of the Roys, allowed the mutation on 21 May 1926. On 20 December 1926, the plaintiff moved the Criminal Court for an order on the defendants under Section 107, Criminal P.C., alleging that the defendants had tried to dispossess him by sowing kalai in the previous April, and that they were again attempting to trespass on the land and dispossess him. This application was dismisssed on 12 April 1927. Thereafter, the plaintiff made a complaint of theft against the defendants in respect of paddy which he stated he had raised on 10 bighas of this land, and which the defendants had taken away. This complaint was dismissed on 9 March 1928, and the Magistrate's judgment contains the following observation: The defence claim the disputed land as theirs from times long ago and admit they have cut away the crops as they grew it. The plot 1594 (the present disputed plot) was the land of the Pathrail landlords - Pathrail Roys, but it was possessed by the tenants, viz. the accused who took settlement from those landlords and are still paying rents. The delivery of possession in the certificate sale seems to be a symbolic one, for the accused are not people who will relinquish their long possession, as they have got bona fide right and possession too.

(3.) As stated before, it was the plaintiff's case that the defendants eventually succeeded in dispossessing him in the following year, that is 1929. The plaintiff again prosecuted the defendants upon the allegation that they had taken away kalai from the land, and this case was finally disposed of by an appellate judgment of the learned Sessions Judge, dated 23rd May 1929 in which he held that the evidence did not establish that Tomizuddin (the plaintiff) was in possession of the land. Another criminal case instituted on 10 September 1929 failed on 25 October 1929. In 1932, there was a suit in which it would appear that the pro forma defendant in the present suit professing to be a cosharer in the superior tauzi sought to eject the plaintiff. This suit terminated in a compromise decree by which the pro forma defendant obtained a one-third share in the lands which were the subject-matter of that suit. Subsequently, a document purporting to be a partition deed was executed by the terms of which the entire plot now in dispute was allotted to the plaintiff.