LACHMAN MAHTO Vs. SHANKER MAHTON

JUDGEMENT

(1.) This is an appeal by the defendant from a decision of the Additional Subordinate Judge of Gaya, reversing a decision of the Munsif of Jehanabad. The appeal arose out of a suit instituted by five persons in a representative capacity for a declaration that plot No. 124 measuring 09 of an acre was a reservoir used by the public for washing their cattle and that the defendant had no right to fill it up and cultivate it. The plaintiff prayed for a permanent injunction restraining the defendant from continuing cultivation of the plot. The defendant pleaded that the land was formerly parti land which was settled with him by the landlord in 1920 orally, and that this settlement was confirmed by a parwana in 1929. As the suit was instituted on 15 April 1936, the defendant pleaded limitation under Article 32 of the Limitation Act.

(2.) The plot in question is entered in the survey papers as ghairmazrua-am (garha or ditch). It has been found as a fact that the defendant filled up the plot in 1929 and has been cultivating since and that it was. from that date the public were ousted from the land in question. It has been held by the Full Bench of the Lahore High Court in Mastan Singh V/s. Santa Singh AIR 1933 Lah 705 that where the act of the defendant amounts to an ouster of the plaintiff, Art. 32, Limitation Act, has no application although the defendant may in fact have perverted the land to some purpose to which it was not originally intended in addition to ousting the plaintiff from it. In Mohammad Waliul Haw V/s. Ludput Upadhya AIR 1937 Lah 705 it was held in this Court that a landlord has no right to settle gairmazrua-am lands and that if he purports to do, the person with whom he purports to settle them acquires no tenancy right by virtue of the settlement.

(3.) It must accordingly be held that the defendant appellant acquired no rights in 1929 and that his act in bringing the land under cultivation amounted to an ouster of the public and that accordingly the period of limitation for a suit to recover possession is 12 years from the ouster. The appeal therefore fails and is dismissed with costs.