KRISHNA SUBALA BOSE Vs. DHANAPATI DUTTA

JUDGEMENT

(1.) THIS is an appeal on behalf of the heirs of the referring claimant Dulal Chand Bose, that is, Claimant No. 1 from the judgment of the President of the Calcutta Improvement Trust Tribunal confirming the award of the Collector and dismissing the reference under Section 18, Land Acquisition Act. The proceedings relate to municipal premises No. 188/2 Maniktola Main Road, measuring 4 bighas and 16 cottas. Admittedly it forms the western part of a larger holding originally numbered premises No. 109 and measuring 18 bighas and 12 cottas. This larger holding really consisted of two holdings namely Nos. 15 and 18 in Sub -division II, Division 3, Dihi Panchannagram under the Collectorate of 24 Parganas. The eastern and the largest part of the holding is numbered premises No. 188 and measures 10 bighas 2 cottas and the central part is premises No. 188/1 measuring 3 bighas 14 cottas.

(2.) THE referring claimant is admittedly the landlord of all the premises, namely, premises Nos. 188, 188/1 and 188/2 and admittedly claimants Nos. 2 (a) to 2 (e) are tenants under him. The latter claimed a mokarari mourashi tenancy which the former disputed but the Collector upheld the claim of the latter and awarded to them as compensation in all the sum of Rs. 1,29,554 -2 -4 only and to the former the sum of Rs. 1567 -5 -8 pies' calculated on the basis of 30 times the proportionate annual rent for 4 bighas and 16 cottas. The reference made at the instance of Dulal Chandra Bose who died after the reference was made raises only a question of apportionment as between the two sets of claimants and the whole question depends on the status of the second set of claimants who are admittedly tenants under the first. According to the referring claimant, the other claimants are merely thika tenants while according to themselves, they are mokarari mourashi tenants. As the learned President of the Tribunal found them to be mourashi mokarari tenants, the only question for decision in this appeal is whether that finding is correct.

(3.) IT has now to be seen how the second set of claimants came to be the tenants. Mathura Mohan Bose, recorded as one of the proprietors in Mr. Crow's proceedings is alleged to have executed a potta in respect of the property in question on the 12th Pous 1251 B.S., that is, 6 -12 -1844 in favour of one Kamal Krishna, Bag and this potta is said to be the origin of the tenancy. This potta is not an exhibit and was not produced by the second set of claimants even though Dhanapati, claimant No. 2 (a) was called upon to produce it, as appears from an application by claimant No. .1, printed at pages 35 -36, part I of the paper -book. In execution of a rent decree in Rent Suit No. 15 of 1908 of the First Court of the Munsif at Sealdah by Indu Prava against Rameshwar Bag and two others, successors in interest of Kamal Bag, the tenancy of Kamal Bag in holdings 15/18 was auction -purchased for a sum of Rs. 7425/ -by Ram Chandra Mandal on 14 -11 -1908 and Ex. E is the sale certificate. Ram Chandra Mandal filed an application under Section 158, Bengal Tenancy Act against Indu Prava as administrator to the estate of her husband Amarnath and this was Misc. Case No. 56 of 1912. On 5 -8 -191.2 there was a compromise and Ex. II is a copy of this and there was an order on the basis of this compromise. Exhibit K is a copy of this order. It is distinctly stated in Ex. H that in the property in suit measuring more or less 18 bighas, Kamal Krishna Bag and his sons Rameswar, Harakrishna and his grandson Manmatha had been in possession for over 20 years from time immemorial, that the potta by which the tenancy was created in the name of Kamal Krishna Bag on the 12th Pous 1251 B. S. was made an exhibit in the case and that it is settled that mourashi mokarari right accrued to the applicant in respect of the disputed property and that the annual rent having been fixed at Rs. 175/ - and the suit for khas possession against the tenant having been subjudice in that Court, Indu Prava, the opposite party consented to the case being tried there. Exhibit K embodies all the material terms of the compromise.