- (1.) Three holdings Nos. 322, 322-B & 331 of sub-division 'M' of Division 6 of Dihi Pan-chanangram in mouza Kalighat had been let out in mokrari mourasi right to different persons, Durga Mohan Dass & others towards the end of the last century. The grantors were some of the shebaits of the deity Sri Sri Kalimata of Kalighat, but the mokarari mourashi grants were made by them not in their character as shebaits. In fact they made the grants on the assertion that the properties so granted were their personal Brah-matter properties. Durga Mohan Dass in course of time acquired by purchase the interest of some of the other mokarari mourashi tenants in those holdings & thus came to own a compact block of land-covering an area of 4 bighas 3 cottas & 8 chattaks & built his house. The premises were numbered by the Corporation of Calcutta as 146 & 147 Russa Road. After his death his three sons & his widow, who were his heirs, sold the said two premises on 20-2-1902 to Rani Abhoyeswari Debi, the then owner of the Bijni estate (Ex. W). The respondent before us Raja Bhairabendra Narayan Bhup, is the present owner of the Bijni Estate. Before 1903 a portion of the said premises was acquired by the Govt. under the Land Acquisition Act. In 1941 the remaining portion of No. 147 Russa Road which covered an area of 2 bighas 2 cottas & 9 chattaks odd was acquired by the Province of Bengal for the extension of the hospital, Chittaranjan Seya Saden. The declaration under Section 6, Land Acquisition Act, was made on 12-8-1940 & the Collector made his award on 4-2-1941 giving Rs. 1,07,107-4-0 for the land & Rs. 42,892-12-0 for the house, huts & trees. With the statutory compensation the total amount came to Rs. 1,72,500/-This amount was apportioned between the respondent & the persons to whom he was paying the mokarari rent. Rs. 78-11-3 was paid to the said superior landlords & Rs. 1,07,107-4-0 was awarded to the respondent for his mokarari mourashi interest in the land. Nothing was awarded to the deity Sri Sri Kalimata. Harendra Nath Haldar, as next friend of the diety made a Reference to the Special Land Acquisition Judge, 24-Parganas under S 18, Land Acquisition Act claiming for the deity the whole of the compensation awarded for the land. His case proceeded upon the ground that the acquired land was a part of an area of 595 bighas 9 cottas odd of revenue free land in mouza Kalighat which was the Debutter property of the Goddess. The learned Judge held that the claimant had failed to prove that the whole of the said area of revenue free land was the Debutter land of the deity, though a part thereof, the area covered by the compound of the temple at Kalighat may be so. He further observed that even if the property acquired was the Debutter property the claim of the deity had been extinguished by adverse possession in respect of the greater part of the acquired land. In deciding this point of law, he held that adverse possession would commence to run not from the date of the grants of the mokarari mourashi leases made by persons who were then some of the shebaits of the deity, but from the death of the grantors. Proceeding upon this basis he held that the claim of the deity could not have been extinguished on the ground that her title had been extinguished by adverse possession in respect of the lands included in the mokarari mourashi leases Exs. X-4 & X-9. In support of this conclusion, he further held that the onus to prove adverse possession was on the respondent & that he failed to discharge that onus as he had failed to show that any part of the lands covered by these leases was not in the acquired area.
(2.) The deity preferred an appeal to this Court, but by an order made by a D. B. on 22-5-1944 in Civil Rule No. 144-F of that year, the appeal was limited to the area of 7i cottas covered by the leases Exs. X-4 & X-9. That order was accepted by the next friend of the deity & the memorandum of appeal was amended accordingly. Before us the claim was confined by the applt's Advocate to those plots only.
(3.) Before we go into questions of title & of adverse possession, we wish to deal with the point as to whether any part of the lands leased out by Ex. X-4 or Ex. X-9, is within the acquired area, though in the view we are taking on the question of limitation, that question is not of importance.;