GUHA RAY, J. - (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. The facts, as far as they are now beyond dispute, are briefly that of the two holdings, namely, Nos. 15 and 18, which originally made up municipal premises No. 109, the first was recorded in Mr. Crow's proceedings (vide Exs. 2 -4 at pages 65 -70 of the paper -book in which the year of the proceedings is not noted, though Mr. Mitra on behalf of the appellants argued that these were of 1480) in the name of Mathur Mohan Bose and others as proprietors and the second in the name of Govinda Chandra Sarkar and others. On 18 -11 -1872, Manindra Ghosh filed before the Deputy Collector, 24 Parganas, a petition Ex. 6 (page 2, part II of the paper -book) alleging that in the recent settlement survey the land of the two holdings had been measured in his name and praying for the grant of a potta in his favour on acceptance of a kabuliat from him. He was then called upon to produce his kobala. Exhibit 7 is the final order of the Deputy Collector on this application. It appears from Ex. 7 that the two holdings were surveyed in May, evidently of the year 1872, as one property in consequence of both holdings then belonging to the estate of Kali Singhee who subsequently died and holding No. 15 was sold by the Receiver of the High Court in respect of Kali Singhee's estate to Manindra Ghosh, but the boundaries entered in the deed embraced both the holdings Nos. 15 and 16. As regards holding No. 18, one Trailokyamani Dasi, mother of the late Singhee applied for patta but to this Manindra Ghosh objected. Both the parties were accordingly referred to the Civil Court and the grant of pattas in respect of any of the two holdings was postponed. Exhibit 8 is the certified copy of a kabuliat executed by Manindra Ghosh in respect of holdings Nos. 15 and 18 and though it is dated 6 -11 -1873 the kabuliat actually appears to have been executed on 17 -11 -1873. Manindra died leaving two sons, Trailokya and Amarnath and a widow Kshetramani Dasi and Amarnath instituted Partition Suit No. 482 of 1889 against his mother and brother and the whole of the garden land and tank known as premises No. 109 Maniktola Main Road was allotted to him, subject to the right to maintenance of Kshetramani Dasi on 21 -2 -1898. Amarnath died on 10 -1 -1905 leaving his widow Indu Prava as his sole heiress. Trailokya died on 27 -9 -1912 leaving his only son Bhupendra as his sole heir. Indu Prava executed a deed of conveyance on 10 -5 -1918 in favour of Bhupendra and by the same deed Kshetramani who was also a party to it freed the property from her right of maintenance. By another sale deed Bhupendra sold the property to Lal Behari Roy on 13 -10 -1923 and Lal Behari Roy in his turn executed in favour of Dulal Bose, claimant No. 1 on 3 -9 -24 Ex. A and all the facts stated above appear from the recitals in Ex. A. That shows how the proprietary right in premises No. 109 Maniktola Main Road came to be handed down to the referring claimant.
(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.;