RAJ CHANDRA BHOWMICK Vs. KHABIBULLA
LAWS(PVC)-1930-1-192
PRIVY COUNCIL
Decided on January 15,1930

RAJ CHANDRA BHOWMICK Appellant
VERSUS
KHABIBULLA Respondents

JUDGEMENT

- (1.)The facts involved in these appeals shortly stated, are a9 follows :.The plaintiffs are the zamindars of mauza Islampur, bearing Tauzi No. 446 of the Tipperah Colleotorate. The mauza, according to the plaintiffs, was held under them in patni in certain defined shares, i.e., two taluks of six annas each, one taluk of three annas and one taluk of one anna. This last mentioned one anna share was held by one Ramdhone Nath. He died some time ago, and on or about the dates hereinafter preferred to, his heirs and successors were in possession of the said patni taluk of one anna share under the plaintiffs on payment of a um of Rs. 82-15-0 as annual rental. In 1918 there were arrears of rent due on account of the said one anna share. A suit was instituted by the plaintiffs for the recovery of the arrears; a decree was obtained and in execution of the decree for arrears of rent the plaintiffs purchased the patni interest in the said one anna share. The sale was confirmed some time in 1920. The plaintiffs obtained delivery of possession in 1921. Their case is that the lands of the one a one had been separated from the lands of the other shares and their one anna patni taluk comprised certain plots exclusively belonging to it and certain undivided but defined shares of other plots held by it jointly with another of these patnia, apparently a patni of three or two and a half annas. That this is really the position is not now disputed. Nor is it disputed that the defendants in these suits are in fact in possession of the whole of both sets of plots, viz. those exclusively belonging to the plaintiffs patni and those belonging jointly to the plaintiffs patni and the other patni. The plaintiffs further say that after their purchase of the one anna patni they came to know that in the settlement records (the settlement having taken place before the purchase of the said one anna share by the plaintiffs) the defendants had been recorded as being in possession in mirash right. In point of fact the Record-of-Bights does not record the defendants as holding solely under the one anna patni. It records the mirash as being held under both the patnis, but the plaint confines its allegation to the plaintiffs patni. According to the plaintiffs the mirash right, or whatever it was, was in the nature of an incumbrance and accordingly, as they allege, a notice under Section 167, Ben. Ten. Act, was served by the plaintiffs on tie defendants with a view to cancel the incumbrance. The plaintiffs thereafter instituted the present suits in 1926 against the defendants praying (inter alia) (a) for a declaration that the defendants had no mirash right in the plaintiff's patni lands and that the plaintiffs were entitled to get the said lands assessed to rent at the rate prevalent in the locality; and (b) for assessment of fair and equitable rent and for recovery of the same. The tenants who were in possession of specific lands alleged to belong to the said one anna share were different, and the khatians in which their mirash right was recorded were numbered 317, 318, 319, 321, 323 and 324. This fact accounts for the circumstance that the plaintiffs had to bring separate suits.
(2.)The defendants raised various contentions in their written statements. I do not propose to set out in detail the contentions of the defendants except one. The defendants alleged that the lands in suit were held by them in mirash right under the patnidars of a certain 2 1/2 annas share in mauza Islampur and not under the one anna share which originally belonged to Ramdhone Nath. According, to them there were two brothers of the name of Earn Mohan and Basi Nath and each of them owned a 2 annas share in patni in the said mouza. Earn Mohan had two 3ons named Eamdhone and Kristo Mangal. Ramdhone had a one anna share and Kristo Mangal had a one anna share. It is alleged that Ramdhone sold anna out of his 1 anna share to Bashi Nath and that the latter thereby became owner of 2 1/2 annas share in patni. The contention of the defendants was, to repeat that they held the lands under this last- mentioned 2 1/2 annas share and not under the 1 anna share. They therefore argued that the present plaintiffs had no cause of action and further that should it be found that some of the lands held by them did belong to the share which originally belonged to Ramdhone Nath and that some belonged to the said 2 1/2 annas share, the present suits were bad inasmuch as the owners of the 2 1/2 annas share had not been made parties thereto.
(3.)All these suits came on for hearing before the learned Munsif of Gomilla and the following specific issues were raised on the pleadings in the said suits: (a) Ate the suits bid for defect of parties? (b) Are the suits barred by Section 188, Ben. Ten. Act and (c) Do the suit lands appertain to one annas hisya (share) or do those lands appertain to ij annas hisya?


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