RAJU ROY Vs. KASINATH ROY

JUDGEMENT

(1.) This appeal by the defendants arises out of a suit in ejectment. This action was brought by the plaintift's-respondents for confirmation of their possession of a tank called Dighi Goria bearing survey plot No. 5S in village Kanduthya after establishment of their title thereto and for recovery of Rs. 180 on account of the price of 3 maunds of fish alleged to have been illegally caught and appropriated by the defendants appellants. Raja Shyam Sundar Singh, Zaminclar or Pandra, was the proprietor and in khas possession of this tank. The plaintiffs' case was that in the year 1338 B.S. (corresponding to 1931) the said Raja made a permanent settlement of the tank with them and pro forma defendants (respondents) at ah annual rental of Rs. 4/2/- after accepting Rs. 175.00 as nazrana and put them in possession of the same. The Raja granted to them a sada hukumnama in proof of the settlement. The plaintiffs asserted that they and the pro forma defendants were in continuous possession of the tank since after the settlement by catching and rearing fish and is various other ways. On 28-3-1947, the appellants forcibly caught fish 111 the said tank occasioning thereby a loss of Rs. 180/- to them, which actions of theirs cast a cloud over their title. Hence the suit.

(2.) The appellants resisted the suit substan-tially on the ground that they had taken permanent settlement of the said tank from the Raja of Panura in 1336 B.S. (corresponding to 1929) by virtue of an unregistered hukumnama on payment of Rs. 225/- as nazrana, and that since then they were in uninterrupted possession of the tank. The denied the title and possession of the plaintiffs.

(3.) The learned Munsif held that the respective leases of the plaintiffs and the defendants did not confer on them any valid title to the land, in-asmuch as the leases having been granted for non-agricultural purposes were legally invalid for was of registration. He held further that the plaintiffs were in possession until 28-3-1947, and the appellants assumed possession by dispossessing the plain-tiffs on that date and were in possession since then. Since neither of the parties were clothed with legal title, he held that both of them were trespassers and that as, in his opinion, one trespasser was not entitled in law to maintain a suit for eject-ment of another trespasser, the suit was miscou-ceived, and the plaintiffs were not entitled to recover possession. On the same reasoning he also disallowed their claim for damages for the fish appropriated by the appellants. The learned Additional Judge on appeal confirmed the finding of the learned Munsiff that both the appellants and the respondents were trespassers having acquired no valid title by unregistered leases. He also held, in agreement with the learned Munsif, that the plaintiffs were in possession of the tank until 28-3-1947, and that on that date the appellants took possession of the tank by forcibly dispossessing them. He, however, rejected the contention of the Munsif that one trespassor cannot maintain a suit for ejectment of another trespasser and held that since the plaintiffs were in possession of the tank until 28-3-1947, they were entitled to recover possession of the land on the strength of their previous possession from any person other than the one having a legal and supe-rior title to the same. Since the appellants also were without right and were in the nature of trespassers, they could not resist legally the plaintiffs' action for possession. He accordingly gave the plaintiffs a decree for possession. He, however, disallowed the claim for the price of the fish on the ground that there was no evidence as to the quantity of fish caught The contesting defendants have come up in second appeal.