TARAKESWAR PAL CHOUDHURY Vs. SATISH KANTA ROY

JUDGEMENT

(1.) Defendant 2 is the appellant before us and the appeal arises out of a suit instituted by the plaintiffs (who are descendants of the Raja of Chanchra in the District of Jessore) as shebaits to Sree Sree Shyam Roy Thakur for a declaration of their lakheraj debuttar title to and in certain lands in Pargana Emadpur situate in the District of Khulna but included in touzi 1 of the Nadia Collectorate, for recovery of khas possession of the same and for mesne profits. The lands in question are stated to be in mouza Dearah by the side of the river Kabatakshi. It is said that the lands in question have been possessed by the family of the plaintiffs for generations as shebaits, the original grant having been made by Raja Pratapaditya, an account of whom is to be found in Westland's Jessore. 2nd Edn., p. 23 and in O Malley's Gazetteer of Jessore, p. 25. The plaintiffs state that at the time of the Decennial Settlement of 1790, the debutter character of the lands in question was recognized and the lands were exempted from payment of Government revenue. Subsequently there were resumption proceedings in respect of the said lands, which ultimately ended in 1842 when the Special Deputy Collector by his order dated 23 May 1842 released the said lands as being lakheraj on the ground that they were debuttar. The plaintiffs alleged that their title as lakherajdars had always been recognized and that although they had made attempts from time to time to clear the lands which were in the Sunderbuns and full of dense jungles and to settle tenants thereon, they were not successful and the lands in question had remained unfit for occupation and settlement until five or six years previous to the institution of the suit. The plaintiffs alleged that in 1320 B.S. they had been informed that the defendant had taken wrongful possession of certain lands in mouzah Dearah and that they were further informed in 1323 B.S., that the defendant had erected a kutehery bari on the said lands. In these circumstances the plaintiffs instituted the present suit in the Court of the Subordinate Judge of Khulna on 25 May 1920 praying for the above reliefs.

(2.) The defendant denied the plaintiffs title and urged that the lands in suit were within mouza Dearah in Pargana Bagmara included within the defendant's ancestral zamindari and alternatively that if ii be found that the plaintiffs had title thereto, he had acquired title by being in exclusive and adverse possession of the same for a. period of more than 12 years from 1313 B.S.

(3.) The learned Subordinate Judge by his judgment dated 22 June, 1927 found that the plaintiffs had made out a clear title to the lands in suit, that until quite recently the lands were incapable of occupation inasmuch as they were covered with dense jungle full of wild beasts and that the defendants had not succeeded in proving that he had been in possession of the said lands from 1313 B.S. adversely to the plaintiffs as alleged by him. The learned Subordinate Judge thereupon declared the plaintiffs title to the lands in suit and gave them a decree for khas possession. He also awarded mesne profits from the date of the suit as per directions contained in his decree.