KAMESHAR SINGH BAHADUR Vs. RAMDHARI MANDAL

JUDGEMENT

(1.) The question to be determined in this appeal is whether some 35 acres of land comprising the greater portion of plots Nos. 1 to 39 appertain to Tauzi No. 460/1768 of village Moradpur in the district of Purnea of which the plaintiff is the proprietor or to Tauzi No. 225/1533 which belongs to defendants 1 to 12. The plaintiff purchased Tauzi No. 460/1768 at a sale held for arrears of revenue on 13 January 1923 and on 8 April 1929 he commenced the present suit with a view to have demarcated and recover possession of some 66 acres of land comprising plots Nos. 1 to 39 and plot No. 5397 which according to him appertained to Tauzi No. 460/1768. His case was that the plots in question had been wrongly recorded in the cadastral survey record of rights prepared about 1906 as appertaining to the defendants tauzi, whereas the case of the defendants was (defendants 1 to 12 being the landlords and defendants 13 and 14 the tenure- holders of the disputed plots) that the record of rights had been correctly prepared and that the plaintiff's suit was barred by limitation.

(2.) The learned Subordinate Judge held that the greater portion of plots Nos. 1 to 39 appertained to the plaintiff's tauzi but plot No. 2593 did not. He accordingly decreed the suit in part and now defendant 14, who is recorded in respect of the disputed land as tenure-holder under defendants 1 to 12, the proprietors of Tauzi No. 225/1533, has appealed. Now a number of facts may be taken to have been clearly established in this case. It appears that in 1843 one Rup Puri held about 106 bighas of milik land for which Rs. 53-3-5 was assessed as revenue, and this estate bore Tauzi No. 460 (vide Exs. 1, 4 and 5). It appears further that between 1846 and 1849 the lands of Rup Puri were sold more than once for arrears of revenue and ultimately they were purchased by Government for Re. 1 and the Collector was asked to settle them. The condition of the land about this time is described in the following words in Ex. 2, a rubkari of the Settlement Deputy Collector dated 7 June 1853: It appeared that as a matter of fact the lands are quite parti (torn) have been washed away by the river Kosi Kalan; and like (?) the (said?) lands thousands of bighas (of lands?) around it are lying fallow (and) have become a jungle (?). On account of such a jungle, this mahal was sold by auction repeatedly (?) consecutively. The auction-purchasers could not manage to pay the rent. It was purchased by the Government and made over to me. While the settlement was not yet made, the said records were returned to the Collectorate. Thereafter on 15 May 1852 they were again (?) made over to this Court. A fresh notice was issued, No one appeared. That is from the beginning of the purchase up to the month (?) of November 1852 (during which?) a period of more than three years elapsed no one applied for settlement.

(3.) The rubkari proceeds to state that in. 1853 one Mr. Mackintosh appeared and filed an application for settlement accepting a jama of Rs. 12-9-5 and so a settlement for ten years was concluded with him. It is also stated in the rubkari that the area settled with Mr. Mackintosh was. 239 bighas 5 kathas 10 dhurs according to a laggi of four cubits. So far the history of Tauzi No. 460 can be clearly traced but what happened to the estate or to the; lands constituting it after 1863 after the term of settlement with Mr. Mackintosh had expired, we do not know. It may however be stated here that on 20 April 1932 an application was made to the Collector on behalf of defendant 14 for ascertaining "in what year and with whom the permanent settlement of Tauzi No. 460/1768 was made" and the answer-to this application was given in the following terms: On looking into the settlement records of 460/1768 there is not seen any paper described as, permanent settlement paper although the decennial settlement papers are found.