Patna High Court
Dhani Sahu And Ors. vs Jirjodhan Prasad Singh And Ors. on 11 August, 1950
Equivalent citations: AIR1952PAT11, AIR 1952 PATNA 11
JUDGMENT Jha, C.J.
1. This is an appeal by defendants Nos. 1, 2 and 6 from a decree, dated the 29th March 1945, of the Additional Subordinate Judge, 2nd Court, Gaya.
2. The suit is for partition of village Larua Lakhana, tauzi No. 2879, on the revenue roll of the Collector of Gaya, arid for other reliefs.
3. It may be mentioned at the outset that, sometime before the institution of the partition suit, a suit for damages, being money suit No. 293 of 1942, had been instituted by defendants Nos. 1 to 6 of the partition suit in the Court of the Munsif at Aurangabad, impleading the plaintiff of the partition suit and several others as defendants, on the allegation that the plaintiff of the partition suit had appropriated the paddy and rabbi crops raised by them (plaintiffs of the money suit) on certain portion of the bakasht land in the tauzi under partition. This money suit was transferred to the Court of the Subordinate Judge, 1st Court, Gaya, where the partition suit had been instituted and was numbered as Money Suit No. 9 of 1944. Both the suits were heard together and are governed by the same judgment. The money suit was dismissed and an appeal from the decree in the money suit has been filed by defendants Nos. 1 to 6 in the Court of the District Judge, Gaya, and has not been disposed of yet. The circumstances under which the money suit was instituted will be referred to hereafter.
4. In order to appreciate the argument at the bar it is necessary to give a short narration of the litigation leading to the institution of the present suit for partition.
5. It appears from the records of the case that originally Basudeo, father of defendants Nos. 7 and 8, was owner of 8 annas interest Jagdeo was owner of 4 annas interest, and Sahodra Koer was the owner of the remaining 4 annas interest in the tauzi under partition. Basudeo died leaving behind his widow, Mt. Deomurat Koer, and two minor sons, Bishundeo (defendant No. 7) and Paraspat (defendant No. 8), and Deomurat Koer was appointed guardian of her two minor sons. Basudeo, during his lifetime, executed simple mortgage bond on the 9th August, '1909, in favour of defendant No. 1, mortgaging four annas out of his eight annas interest in this tauzi. On the 1st August, 1918, Deomurat Koer as certified guardian of her two minor sons executed a sale-deed for Rs. 10,000/- (Ex. A2) in favour of defendant No. 1, conveying the 4 annas interest which had been mortgaged to him under the mortgage bond dated the 9th August 1909. The money under the sale deed was raised to pay off the dues under the mortgage bond and to meet other expenses of the family. It may be stated here that Jagadeo also sold to defendant No. 1 his own four annas interest under the kebala (Ex. A2). It further appears that defendants Nos. 1 to 6 acquired the 4 annas interest of Sahodra Koer in this tauzi under a sale-deed dated the 3rd May, 1925 (Ex. Al). Thus defendants Nos. 1 to 6 acquired 12 annas interest in this tauzi and Bishundeo (defendant No. 7) and Paraspat (defendant No. 8) were left with 4 annas interest therein. Out of this 4 annas interest of defendants Nos. 7 and 8, 2 annas interest passed to defendants Nos. 17 and 18 at Court sale with an encumbrance under a usufructuary mortgage bond executed by Basudeo in favour of defendants Nos. 19 to 23 who are still in possession, and the remaining 2 annas interest passed to defendant No. 9 who sold it to defendants Nos. 10 to 16.
6. On attaining majority Bishundeo (defendant No. 7), for self and as guardian of his minor brother, Paraspat (deiendant No. 8), instituted title suit No. 23 of 1928 in the Court of the Subordinate Judge, Gaya to get the sale deed dated the 1st August, 1918 (Ex. A 2) declared void and inoperative and for recovery of possession with mesne-profits This suit was decrcid on the 24th May, 1930, with mesne profits, and the decree of the trial Court was altirmed on appeal by the High Court by its judgment dated the 28th November, 1954. Thereafter defendants Nos. 6 and 7 applied for execution of the decree in title suit No. 23 of 1928. During the pendency of the execution proceedings they sold to the plaintiff, under a sale-deed dated the 7th September, 1937 (Ex. 4), along with other properties, their 4 annas interest in tauzi No. 2879, in respect of which they had obtained a decree in title suit No. 23 of 1928, for a consideration of Rs. 4,000/- to satisfy their debts and to pay oil certain decrees which had been obtained against them by their creditors, and in respect of which executions were pending. After execution of the sale-deed (Ex. 4) the plaintiff obtained delivery of possession of the 4 annas interest purchased by him on the 21st September, 1938.
7. After the sale-deed dated the 1st August, 1918, referred to above, was declared inoperative by the Court, a suit was instituted on the 16th June, 1936, toy defendant No. 1 and other members of his family on the basis of the mortgage bond dated the 9th August, 1909, in the Court of the Subordinate Judge, Gaya, being mortgage suit No. 37 of 1936; the transfer in favour of the plaintiff being 'pendente lite', he was added on the 12th November, 1937, as defendant No. 23 in the suit. This suit, however, was dismissed by the trial Court on the 5th August, 1938. There was an appeal by defendant No. 1 of the present suit (who was the plaintiff in the said suit) to the High Court (First Appeal No. 64 of 1938), and during the pendency of the appeal a compromise was entered into by defendant No. 1 and other members of the family on the one hand and defendants Nos. 7 and 8 on the other. Accordingly a compromise petition was filed in the appeal and a consent decree for Rs. 7200/- was passed by the High Court by its order dated the 24th August, 1943. The present plaintiff, who was defendant No. 23 in the Court below, was not a party to this compromise. As the plaintiff had become a purchaser during the pendency of the suit, defendant No. 1 and other members of his family alleged that the present plaintiff was only benamidar for defendants Nos. 7 and. 8, and a prayer was made on their behalf that an issue be framed to that effect and sent down for trial in the Court below, but their Lordships observed:
"As the decree which is being passed by the Court is a money decree it appears to us that no such issue arises in the present litigation. It will, however, be open to the plaintiff to raise the question, if necessary, in the execution proceedings."
8. From the narration of the facts as stated above it would appear that the defendants Nos. 1 to 6 were left with 8 annas interest in the tauzi, the plaintiff claims 4 annas interest therein under the sale-deed (Ex. 4), defendants Nos. 19 to 23 claim to be in possession of 2 annas interest belonging to defendants Nos. 17 and 18, and defendants Nos. 10 to 16 of the remaining 2 annas interest in the tauzi. Thus it is clear that defendants Nos. 7, 8 and 9 have no interest left in the tauzi. The specification of shares of the defendants as stated above is given in schedule A to the plaint.
9. According to the plaintiff's case, there are tenancy, bakasht and basgit lands in the tauzi under partition. 61.33 acres are alleged to be the total area of the bakasht land as specified in schedule B to the plaint. Out of this area 28.33 acres have been recorded as bakasht in the record of rights; 17.58 acres were recorded in the names of tenants and were abandoned by them -- both during and after the survey -- and are alleged to be in the possession of landlords; and 15.22 acres are said to be tenancy lands purchased by defendants Nos. 1 to 6 in execution of decrees for rent.
10. The plaintiff's allegation is that for the sake of convenience of cultivation there was a private arrangement under which defendants Nos. 1 to 6 were in cultivating possession over 48 acres and add and defendants Nos. 7 to 9 used to cultivate 12 acres and odd of the bakasht land, and they paid compensation to other landlords in proportion of their shares, The case, as set out in the plaint, is that although the plaintiff got delivery of possession over 4 annas interest in the tauzi on the 21st September, 1938, corresponding to the 12th Asin 1348 Fasli, he could not get direct possession over any portion of the bakasht land. In 1347 Fasli, however, by a private arrangement he was put in possession over 20 bighas and odd out of the bakasht lands fully described in Schedule C to the plaint; he grew paddy and rabbi crop over the land specified in Schedule C to the plaint, but as a sequel to proceedings under Sections 144 and 145, Criminal P. C. the paddy and rabbi crops raised by him were appropriated by defendants Nos. 1 to 6, and the plaintiff lost possession over the land specified in Schedule C to the plaint. It is alleged that defendants Nos. 1 to 6 in order to forestall the plaintiff brought money suit No. 293 of 1942 in the Court of the Munsif at Aurangabad as stated above, claiming compensation from the plaintiff in respect of Schedule c land on a false allegation that the paddy and the rabbi crops had been raised by them but appropriated by the plaintiff. The plaintiff has accordingly brought the present suit for partition and prays for allotment of a separate takhta in lieu of the 4 annas share in Basti, Baharai, Sairat, Bakasht and other kinds of lands. There is also a prayer for a decree of Rs. 1499/2/6 as compensation for the years 1346 to 1349 Fasli against the defendants or such of them as may be adjudged liable therefor, together with interest 'pendente lite' and future interest.
11. Five sets of written statements have been filed in the present suit. As the appeal is by defendants Nos. 1, 2 and 6 only, it is not necessary to state in detail the defence of other defendants. It may be stated that defendants Nos. 10 to 16 in their written statement have alleged that bakasht (excepting Basti lands of all descriptions were divided among the landlords according to their shares but they have no objection to the partition being effected. They, however, deny any liability for compensation, inasmuch as, according to them, they are not in possession of any baksht land in excess of their proportionate 2 annas share. According to them, defendant No. 9 (their predecessor in interest) settled a portion of the bakasht land in his possession with one Bigan Gope, who is in possession of the same, and it is alleged that in the absence of Bigan the suit is bad for defect of parties. Similarly, defendants Nos. 19 to 23 deny having held any bakasht land in excess of their proportionate share or to have deprived the plaintiff of his share in the bakasht land in collusion with any of the defendants. They have no objection to partition and their case is that for convenience of cultivation each party cultivated a portion of bakasht land by mutual adjustment, although there was no partition (written statement 4).
12. Defendants Nos. 3 to 5 are minor members of the family of defendants Nos. 1, 2 and 6. They have appeared through their pleader guardian-ad-litem and have adopted the written statement of defendant Nos. 1, 2 and 6.
13. Defendants Nos. 1, 2 and 6 deny the story of the plaintiff that he was allowed to cultivate 20 bighas and odd of land specified in Schedule C to the plaint; they also deny the plaintiff's story of the removal by them of the paddy and rabbi crops as alleged in the plaint. Their case, in short, is that the plaintiff is a farzidar for defendants Nos. 7 and 8. According to them, some of the lands alleged 'to be bakasht in the plaint were acquired by them at Court sales in execution of decrees for rent obtained by them against certain tenants, while some other lands, out of Schedule B to the plaint, were recovered by them after costly litigation from persons set up as tenants by defendants Nos. 7 and 8. Therefore, according to them, the plaintiff is not entitled to claim any share in the bakasht lands so acquired by them. They also allege that some lands mentioned in Schedule B are not bakasht and are in actual possession of tenants, and, therefore, not liable to partition. They allege, however, that they paid the compensation for the excess of bakasht lanas in their possession to defendants Nos. 7 and 8. They further p.eaded that about 17 bighas of the land in Schedule B were allowed to remain in possession of defendants Nos. 7 to 9 under a compromise and about 8 bighas out of the same were settled with one Bigan Gope and as such these lands are not able to partition. Their case is that, if the plaintiff in any event be held entitled to any share in the bakasht land, they are entitled to be reimbursed tor the expenses incurred by them in the litigation for the recovery of these disputed lands.
14. On the allegations stated above several issues were-framed and the suit came up for hearing before the learned Subordinate Judge, who decreed the suit for partition on the 10th June, 1944. At the hearing defendants Nos. 1 to 6 did not appear to contest the suit. Therefore, the suit was heard in the presence of defendants Nos. 10 to 16 and 19 to 23 and 'ex parte against defendants Nos. 1 to 6. This decree was, however, set aside on an application under Order 9, Rule 13, filed by defendants Nos. 1 to 6, and the suit was set down for hearing afresh in the presence of defendants Nos. 1 to 6. At the second hearing issues were remodelled in the presence of all the parties and defendants Nos. 1 to 6 did not raise any issue regarding the title of the plaintiff although the Court at the first hearing had recorded a finding of title in favour of the plaintiff. The learned Subordinate Judge, on a consideration of the evidence, has found that the suit is not bad for non-joinder of parties or mis-joinder of causes of action, that the plaintiff has proved his title and possession in respect of his 4 annas interest in the tauzi; that the lands given in the schedules to the plaint are bakasht lands and liable to partition and that the plaintiff is entitled to compensation for the years 1346 to 1349 for having been kept out of possession of his share of the bakasht land. Accordingly a decree for partition and compensation as claimed in the plaint has been passed by the learned Subordinate Judge.
15. The first question that arises for consideration in this appeal is whether the plaintiff is entitled to claim partition by metes and bounds and allotment of a separate takhta in lieu of his 4 annas share in the tauzi under partition. The plaintiff has brought this suit for partition as a co-sharer by impleading all the co-sharers interested in the tauzi and there is no defect of parties. Therefore, in order to succeed in the suit the plaintiff has to prove unity of title and unity of possession. In support of his title the plaintiff relies upon the registered sale-deed, dated the 7th September, 1937 (exhibit 4), under which he purchased the 4 annas interest in the tauzi for Rs. 4,000/-. To prove the passing of consideration under exhibit 4 the plaintiff relies upon two satisfaction petitions. (Exs. 5 and 5A) under which he paid the dues of Pandit Ramballav Missir and others in satisfaction of decree obtained by them against defendants Nos. 7. and 8 in respect of which execution proceedings were pending. The plaintiff has further adduced oral evidence in this behalf. P. W. 1, who is one of the creditors of defendants Nos. 7 and 8, states that out of the consideration money of Rs. 4,000/-, Rs. i,300/- went towards the satisfaction of the decrees of Ramballav Missir and others and the remaining sum namely, Rs. 2,700/-, was paid to him (the witness) in satisfaction of the debts due to him from defendants Nos. 7 and 8. His statement is corroborated by the evidence of P. W. 2. Thus, In my opinion, the plaintiff has proved his title which he acquired under the sale-deed (Ex. 4) and passing of consideration thereunder.
16. The plaintiff has relied both on documentary and oral eviuence in support of his joint possession. He refies upon certain decrees which he obtained against tenants for arrears of rent. Exs. 10 and 10(a) are rent decrees obtained by the plaintiS against tenants for arrears of rent. Exhibit 10(b) is a decree showing that the plaintiff was implead as a co-sharer in a suit for rent brougnt by another co-sharer against certain tenants. Ex. 7 is a certified copy of register D showing that the plaintiff stands recorded in the revenue register of the Collectorate of Gaya. Exs. 11 series are chal-lans showing payment of revenue by the plaintiff. Thus, the documents referred to above clearly show that the plaintiff was in joint possession of his share in the tauzi and was also treated as a co-sharer malik by other co-sharers of the tauzi. Besides the oral and documentary evidence referred to above there is a clear admission of the plaintiff's title and possession by some of the witnesses examined by some of the defendants. D.W. 1 for defendants Nos. 11 and 16, who is defendant No. 13, says that it is not true that the plaintiff is the farzidar of Bishun Babu (defendant No. 7.) Be sides, D.W. 1 for the defendants Nos. 1, 2 and 6, who is defendant No. 11, states in his deposition that "Durjodhan Babu" has 4 annas share in the tauzi and is in possession. This is evidently a mistake for Jirjodhan Singh, and the next sentence of his deposition shows that he is referring to the plaintiff. I cite it below:
"Ram Pukar Babu and Raja Babu go there for the Plaintiff." Ram Pukar has been examined as P.W. 1 and refers to Raja Singh as being gumashta of the plaintiff. When in the argument this passage in the deposition of the witness f was cited, there was no suggestion on behalf of the appellants that be meant some one other than the plaintiff, It is, therefore, not safe to rely on the interested testimony of D.W. 5 for defendants Nos. 1, 2 and 6, who is one of the defendant-appellants, and his other witnesses who deny the title and possession of the plaintiff and allege that he is only a benamidar for defendants Nos. 7 and 8. Therefore, on a consideration of the entire evidence on the record I see no reason to differ from the finding of the learned Subordinate Judge on the point."
17. It has been argued at the bar that the appellants had alleged in their written statement that the plaintiff is a benamidar for defendants Nos. 7 and 8, but there was no issue raised on the -point and as such the defendants have been prejudiced as they had no opportunity to place before the Court full evidence to prove the 'benami character of the sale-deed under which the plaintiff claims title. It is contended that an issue be framed regarding the question of title and a finding from the trial Court on further evidence be called on, or, at any rate, the question of title of the plaintiff be left open.
18. In my opinion, issue No. 2, which runs as follows:
"Are the lands given in the schedule bakasht? Are they liable for partition as such?"
clearly covers the question of title. As already observed, the suit was at first heard 'ex parte' against defendants Nos. 1 to 6, and at that stage a large number of issues had been framed. The decree was, however, set aside at the instance of the appellants on an application under Order 9, Rule 13, of the Code of Civil Procedure and after the suit was restored for hearing the issues were remodelled with the consent of the parties (Vide order No. 46, dated 20-2-1945.) The defendants did not insist on any specific issue being framed regarding the title. If the appellants wanted to raise any specific issue on the question of title they should have asked the Court to frame such an issue. In my opinion, it was clearly understood that the question of title and possession was covered by issue No. 2. In fact eviaence was led on the point and the Court below has recorded its finding thereon. Therefore, it is not open now to the appellants to question the title or possession of the plaintiff. The question of the plaintiff's title and possession Icannot be left open to be determined at a later 'stage for the obvious reason that no decree for partition can be passed unless possession of the plaintiff based on some title is proved. It is true that the appellants took out execution of the compromise money decree which they had obtained against defendants Nos. 7 and 8, and in execution ot the decree attached the 4 annas interest which is claimed by the plaintiff in the partition suit. There was a claim case preferred by the plaintiff under Order 21, Rule 58, of the Code of Civil Procedure. This claim case was allowed, but when the matter came to the High Court there was a remand and the objection filed under Order 21, Rule 58, was ordered to be treated as one under Section 47 of the Code of Civil Procedure. It is stated at the bar that the matter is still pending. In my opinion, it will not be proper to leave the question of title and possession open to be investigated in the proceeding under Section 47 of the Code of Civil Procedure which is still pending. The appellants had full opportunity to prove the 'benami' character of the sale-deed in favour of the plaintiff. I do not think that ends of justice require that the partition suit should be stayed and the question of the plaintiff's title investigated in miscellaneous proceedings.
19. Thus the plaintiff having proved his title and joint possession in respect of the tauzi under partition to the extent of his 4 annas interest therein and no case of any previous partition having been set up by the appellants, the piaintiff is clearly entitled to have a separate 'patti' of his 4 annas interest in the tauzi
20. Now the question for decision is whether the land set out in Schedule B to the plaint is bakasht as alleged and whether there is any bar to the plaintiff getting the right to khas cultivating possession after partition in respect of any portion of the bakasht land by reason of Section 22, Clause (2) of the Bihar Tenancy Act.
21. According to the plaintiff's case as set out in the plaint, the total area of the bakasht land is 61.33 acres out of which 48.80 acres are alleged to be in the possession of defendants Nos. 7 to 9. I have already stated that out of the 4 annas interest in the tauzi belonging to defendants Nos. 7 and 8, 2 annas interest was purchased by defendant No. 9, from whom it has passed to defendants Nos. 10 to 16, and the remaining 2 annas interest has passed to defendants Nos. 17 and 18 and is at present in possession of defendants Nos. 19 to 23 as usufructuary mortgagees. The plaintiff's case in the plaint is that he did not get actual possession of any portion of the bakasht land set out in Schedule B to the plaint at the time of the delivery of possession, but by subsequent arrangement he was given by defendants Nos. 1 to 6, 20 bighas out of the bakasht land for khas cultivation in lieu of his share of the bakasht land, the specification of which is set out in Schedule 6 to the plaint. This story of the plaintiff was not accepted by the trial Court and the finding of the Court below on this point has not been challenged before us. Therefore, according to the case of the appellants, the plaintiff was not in actual possession of any portion of the bakasht land in the tauzi, though he got the formal delivery of possession in respect of his 4 annas share through Court on the 21st September 1938. It may be mentioned that it appears from Exhibit that Lachhmi Prasad, defendant No. 9, instituted Title Suit No. 169 of 1929 against the appellants and others for recovery of khas possession in respect of certain khatas mentioned in the schedule to the plaint of the present suit on the ground of abandonment of the holdings by the tenants recorded in the record of rights. This suit was compromised, and under the compromise 17 bighas, 3 kathass 1 dhur out of Khatas Nos. 3 and 9 were put in the direct cultivating possession of defendant No. 9 representing 4 annas interest in the tauzi and the remaining area was allowed to remain in possession of the appellants representing 12 annas interest in the tauzi, which includes the 4 annas interest which has now passed into the hands of the plaintiff. Thus it is clear that all the bakasht land in the village excepting the 17 bighas 3 kathas 1 dhur land is in the possession of the appellants. Therefore, the plaintiff would be entitled to direct cultivating possession in the bakasht land after the partition if there be no legal bar in his way.
22. In Schedule B to the plaint the bakasht land has been classified under the following three categories :
(1) 28.33 acres recorded as bakasht in the record of rights under Khata No. 3;
(2) 17.58 acres said to have been abandoned by the original tenants before the final publication of the record of rights and thereafter recorded under Khatas Nos. 9, 21, 25, 28, 29, 32 and 33;
(3) 15.22 acres purchased by defendants Nos. 1 to 6, the appellants, at Court sales and also-by private treaty.
23. It may be mentioned that according to the appellants khata No. 29 is not an abandoned holding. His case is that it was held by the original tenant Sheocharan Teli, and the appellants as 12 annas co-sharer landlords purchased this khata in execution of a decree for rent, in execution case No. 675 of 1937, and in support of his case the sale certificate (Ex. P-l) has been filed. With regard to khata No. 32 the appellants' case is that this holding was not abandoned by the original tenant. According to them it was the service jagir of one Jageswar Dusadh and that they recovered possession of this khata by a suit after terminating the service tenure. They admit however, that the land of this khata is in their possession as bakasht.
24. Khata No. 28 comprises plots Nos. 100, 104 and 112, whereas khata No. 24, comprises several, plots including plots Nos. 101, 105, and 107. With regard to the three plots of khata No. 28 the appellants' case is that they are not bakasht but homestead and khand lands of one Mohan Kumhar. Similarly, with regard to plots Nos. 101,105 and 107 appertaining to khata No. 24, their case is that they are the homestead and khand lands of All Jolaha and Dukhi Jolaha (written statement 18.) Their case is that these plots of the two khatas are not bakasht and, therefore, not liable to partition as such. D.W. 5, however, who is one of the appellants, states In evidence "the lands of khata No. 28 of Seocharan Teli are' parti and in my possession." With regard to the three plots appertaining to khata No. 24 mentioned above, his evidence is:
"Ali Jolaha and Dukhi Jolaha have their houses.
I cannot give their plot numbers. They live in their raiyati lands which are their homestead."
I may state here that there were previous disputes in respect of khata No. 24 (vide Exhibits D and D (1)) but the specific case as alleged here was never set up. Therefore, I am of opinion that the appellants have failed to prove that the plots mentioned above appertaining to khatas Nos. 24 and 28 are not bakasht land having been abandoned by the original tenants.
25. With regard to khatas Nos. 9, 21, 24, 25 and 33, the appellants do not dispute the plaintiff's case of abandonment of these khatas but their case is that these khatas along with plots Nos. 17, 20 and 340 appertaining to khata No. 3 were settled under a 'sada hukumnama' granted by Deolochan Koer, mother of defendants Nos. 7 and 8, and Jagdeo with Nasrat, Nanhak, Sulaiman, Turawan and Imaman, and a case under Section 145 of the Code of Criminal Procedure cropped up between the appellants and those Muhammadan tenants, which, as it appears from the judgment of the Magistrate (Ex. L1), terminated in favour of the Joiahas. The appellants had, therefore, to institute a title suit against them, being Title Suit No. 26 of 1927, which was decided in their favour. Exhibit L is the judgment of the Subordinate Judge in Title Suit No. 26 of 1927 and Exhibit O1 is the decree therein. Therefore, it is argued on behalf of the appellants that the plaintiff is not entitled to claim any share in these khatas. Alternatively their case is that, if in any event the plaintiff is entitled to khas possession over these khatas on partition, the appellants must be reimbursed to the extent of Rs. 3,051/-, the amount which they had spent as the cost of litigation. I may state at once that the judgment of the trial Court in Title Suit No. 26 of 1927 (Ex. L) shows that the tenants failed to prove settlement and there was no 'independent evidence to show that the defendant tenants were set up by Deolochan and Jagdeo. Thus there is no manner of doubt in my mind that khatas Nos. 9, 21, 24, 25 and 33 were in possession of the appellants as abandoned holdings and they recovered possession of these khatas from Nasarat and others who were found to be mere trespassers.
26. The lands of khata No. 3 are admittedly recorded as bakasht in the record of rights (Ex. 12.) The case of settlement as set up by Nasarat and others with respect to plots Nos. 17, 20 and 140 appertaining to khata No. 3 failed. Therefore, the entire khata was in possession of the appellants and other defendants as bakasht.
27. With, regard to the lands described in the plaint as bakasht under the third category, the appellant's case is that khata No. 8 belonged to one Jageshwar Dusadh, and the appellants as 12 annas landlord purchased the entire holding in execution of a rent decree obtained against the tenants, in execution Case No. 1494 of 1927, and the sale certificate (Ex. P-l) has been filed in support of the case. With regard to the remaining khatas of the third category, namely, khatas Nos. 12, 13, 14 and .16, it appears from Exhibits 10 (c), 10 (d) and 10 (e), which are decrees in rent suits, that khatas Nos. 12, 13 and 14 belonged to one Nanhku Barhi and Khata No. 16 belonged to one Deva Charan Barhi and that decrees for rents were obtained against them. Nothing has been placed before us to show that these khatas came into possession of the appellants by virtue of any Court sale in execution of decrees for rent. On the other hand, the case set up by the appellants in respect of these khatas is that they were purchased by one Raghu Sahu under a kebala, dated the 6th January 1927, and after his death these khatas came into possession of his sons Dargahi and Hazari. A sale-deed dated the 1st July 1941, (Ex. A) executed by these two sons of Raghu Sahu has been filed to show that they had title and possession over them. So far as these khatas are concerned, it may be stated that the judgment of the High Court (Ex. 9), shows that Raghu Sahu, the purchaser under the sale-deed dated the 6th January, 1927, was held to be a benamidar' for the appellants and it has been admitted by D.W. 5, who is one of the appellants, that he is in possession of these khatas. In fact, the contention of Mr. G. P. Das, who argued the case before us on behalf of the appellants, was that the appellants have acquired title by Court sales held in execution of decrees for rent in respect of only two khatas, viz., khata No. 29 and khata No. 8.
Thus the plaintiffs' case that khatas Nos. 8, 12, 13, 14 and 16 were acquired by the appellants by purchase is admitted. It has also been proved by them that khata No. 29 was purchased by them at Court sales.
28. In view of the discussions already made I am of opinion that the plaintiff has established the bakasht character of all the lands mentioned in Schedule B to the plaint, and therefore he is entitled to khas possession on partition of the lands mentioned in Schedule B to the plaint in proportion to his 4 annas interest in the tauzi. I may mention here that it was conceded in the Court below that the plaintiff is entitled to his share in the lands:
"that are recorded as bakasht in the survey because of their initial nature as such or on account of abandonment."
The argument in the Court below was confined only to the land falling under the third category, that is, land acquired by the appellants by purchase, and it was contended there that the lands falling under the third category cannot be partitioned as bakasht by reason of Section 22, Clause (2) B. T. Act. It has been argued before us by Mr. G. P. Das, appearing on behalf of the appellants that the plaintiff is not entitled to khas possession only in respect of khatas Nos. 29 and 8 which were purchased by the appellants at Court sale in execution of decrees for rent in respect thereof, and reliance has been placed on the recent decision of the full bench in the case of 'Upendra Pratap v. iswarwati Kuer', 27 Pat 610, in support of his argument that the appellants are entitled to hold the land of these two khatas subject to the payment of rent to the other co-proprietors as contemplated by Section 22, Clause (2) B. T. Act, even if on partition the lands of these two khatas fall into the 'patti' of the plaintiff or other co-proprietor. It has been further argued that the plaintiff is not entitled to claim partition as bakasht land of khata No. 32 and of khatas Nos. 3, 9, 21, 24, 25 and 33, without reimbursing the appellants for the costs incurred by them for recovery of possession. Their case is that they spent about Rs. 200 /- for the recovery of khata No. 32 and Rs. 3,051/- for the recovery of khatas Nos. 3, 9, 21, 24, 25 and 33 as costs of litigation and they are entitled to be re-imbursed be-fore the plaintiff can claim any relief. It may be observed here that the learned Subordinate Judge rejected the argument regarding the applicability of the provisions of Section 22, Clause (2) B. T. Act on the ground that it was not proved that the holdings were transferable, and, therefore, relying upon the decision of 'Lachhmi Narain v. Ram Saran', AIR (16) 1929 Pat 185, the learned Subordinate Judge held that the appellants could be treated as trespassers in respect of lands purchased by them whether privately or by Court-sale, and the land would be partitioned as bakasht. But in my opinion, the point does not arise and neither of the two points raised by Mr. Das is sustainable. The appellants are in possession of the bakasht lands specified in Schedlue B to the plaint as 12 annas co-sharers. They acquired the two khatas namely, khatas Nos. 29 and 8, as 12 annas co-sharer landlords representing the 4 annas interest which is now in the hands of the plaintiff under the kebala dated the 1st August 1918 (Ex. A-2. ) The plaintiff purchased from defendants Nos. 7 and 8 their 4 annas interest in the tauzi, which was in possession of the appellants, by a kebala dated the 7th September, 1937 (Ex. 4), and the plaintiff got delivery of possession on the 21st September 1938. Therefore, when the appellants purchased two khatas in 1927 and 1938, they purchased as the representative of the plaintiff as well. In my opinion, the case does not fall within the mischief of Section 22, Clause, (2) B. T. Act, and the principle laid down in the Full Bench case in 'Upendra Pratap v. Iswarwati Kuer', 27 Pat 610 is not applicable.
29. It is no doubt true that the appellants had to incur some expenses to recover either the service tenure of Jageshwar Dusadh or from the Jolaha trespassers. But I think the appellants are not entitled to be reimbursed. There is no satisfactory evidence on behalf of the appellants to prove the actual expenditure. Exhibit G is a bahi for the year 1924 filed by the appellants to show the expenses incurred by them over the litigations. This bahi does not seem to have been kept in the ordinary course of business. The entries show that certain sums were paid to lawyers who are still alive, but they have not been examined, nor has any receipt been filed in Court granted by any of the lawyers who worked in those cases. In the absence "of any independent evidence on the point I do not feel inclined to rely upon the evidence of D.W. 5 for the appellants or upon the bahi (Ex. G.). The learned Subordinate Judge has doubted the genuineness of this bahi (Ex. G) and I entirely agree with the reasons given by the learned Subordinate Judge and see no reason to differ from the view taken by him. Therefore, even if it be assumed that the appellants are entitled to be reimbursed, I am of opinion that they have failed to prove the actual expenses incurred by them over the litigations for the recovery o£ the lands claimed as bakasht in the suit. As a result of the findings arrived at above, in my opinion the plaintiff is entitled to claim partition of the entire lands as given in the plaint as bakasht as well as the proprietary interest to the extent of his 4 annas interest. It may be observed, as has already been stated, that by a compromise (Ex. O) certain specific plots appertaining to khatas Nos. 3 and 9 were given to defendant No. 9 representing the 4 annas interest which at present is held by defendants Nos. 10 to 16 and 19 to 23 (representing the interest of defendants Nos. 17 and 18) and it is an admitted position that some lands were settled by defendant No. 9, the predecessor in interest of defendants Nos. 10 to 16, with one Bigan Gope, who is not a party in the present suit. Therefore, in my opinion, at the final partition lands settled with Bigan Gope should be allotted to the share of defendants Nos. 10 to 23 as their bakasht land.
30. The next question for consideration is whether the plaintiff is entitled to claim compensation for his share of the produce for the years 1346 to 1349 Fasli. It has been contended before us by Mr. Nawal Kishore Prasad, on behalf of the appellants, that there is no averment in the plaint of any ouster or exclusion of the plaintiff by the appellants and that, therefore, in the absence of such averment the plaintiff is not entitled as a co-sharer landlord to claim any compensation from the appellants, and in support of his contention he has relied upon 'Robert Watson & Co. v. Ram Chand Dutt', 17 Ind App 110 and 'Shyam Sunder v. Mt. Sheorachan Kuer AIR (24) 1937 Pat 235. In both these cases, however, a decree for compensation was made in favour of the plaintiff. In my opinion, the appellants, on their own case, cannot escape liability to compensate the plaintiff in respect of their exclusive use of the bakasht land. The principle, on which the liability of a co-sharer to compensate his other co-sharers for his exclusive use of any common land is determined is based upon equitable considerations. It is now well-settled that if a co-sharer is in separate possession of any portion of the common land -- whether or not in excess of the area to which he may be entitled on partition -- without causing ouster or exclusion of any other co-sharers, or is in occupation of such land in a proper and husband like manner without any objection on their part, it would not be in consonance with the rules of justice, equity and good conscience to allow them to claim a share in the fruits of the labour or capital of the co-sharer in possession. But if a co-sharer occupies a portion of the common land in denial of the right or title of other co-sharers in spite of their objection, or excludes or ousts them from possession, he should be held liable to pay to such co-sharers compensation for his exclusive user of the common land from the profits earned by him with the help of his labour, industry, skill or capital. This rule was laid down as early as the year 1890 in the case of 'Robert Watson & Co. v. Ram Chand Dutt', 17 Ind App 110, on which Mr. Nawal Kishore Prasad has relied. In this case the plaintiffs and defendants (Watsons) were co-sharers in possession as tenants in common. The Watsons were in possession of the common land in excess of their proportionate share, and they resisted the endeavours Of the plaintiff to take possession, of the lands in their exclusive occupation. Such restence on their part was not in denial of the title of the plaintiS but simply with the object of protecting themselves in the profitable enjoyment of the land. The suit was by the plaintiffs for joint possession, injunction and compensation. The Courts in India decreed the suit for joint possession, granted injunction and allowed compensation. Their Lordships of the Judicial Committee set aside the decree for joint possession and for injunction but allowed compensation to the plaintiffs at the rate of 7 annas per bigha. While setting aside the decree of the High Court regarding injunction their Lordships are reported to have said:
"In India a large proportion of the lands, including many very large estates, is held in undivided shares, and if one share-holder can restrain another from cultivating a portion of the estate in a proper and husband like manner, the whole estate may, by means of cross-injunction, have to remain altogether without cultivation until all the share-holders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected -- a work which, in , ordinary course, in large estates would probably occupy a period including many seasons. In such a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorated in value. In Bengal the Courts of Justice, in according to justice, equity, and good conscience, cases where no specific rule exists, are to act and if, in a case of share-holders holding lands in common, it should be found that one shareholder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other share-holder to appropriate to himself the fruits of the other's labour or capital."
In the principle enunciated above their Lordships ordered that:
"the plaintiffs do recover from the defendants No. 1 a sum of money calculated at the rate of two-thirds of 7 annas per bigha a year for 4128 bighas, as compensation in respect of the exclusive use and benefit by the defendants No. 1 of 4128 bighas, from the beginning of the year 1291 Amll to the, 4th of January 1886, the date of the said decree."
It may be observed that the Watsons were in possession of the 14 annas interests in the mahal which belonged to the plaintiffs' family as lessee, and their lease expired on the last date of the year 1290 Amli. Therefore, their Lordships ordered compensation to be allowed to the plaintiffs from the date of the expiry of the leases in favour of the Watsons, The principle laid down in this case was again reaffirmed by their Lordships of the Judicial Committee in 'Midnapur Zamiridary Co. v. Naresh Nara-yan Roy, 51 Ind App 293, in which Sir John Edge said:
"Where lands in India are so held in common by co-sherers, each co-sharer is entitled to cultivate in his own interests in a proper husband like manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sharer is not an ouster of his co-sharers from their proprietary right as co-sharers in the lands."
I may observe that in this case the suit was for partition in which compensation was claimed by the plaintiffs. The Subordinate Judge had decreed mesnc profits, but their Lordships of the Judicial Committee varied the decree of the Subordinate Judge "by substituting for his order as to mesne profits an order that the Midnapur Zamindary Company is to pay compensation to the plaintiff for the exclusive use by the Midnapur Zamindary Company themselves or by their tenants of the land in suit."
This case came to be considered by Division Bench of the Calcutta High Court in the case of 'Chandra Kishore v. Biseswar Pal, 55 Cal 393, and after a review of all the decisions relevant to the point, Page, J., says:
"Where co-sharers are entitled to joint possession of immoveable property as tenants-in-common each of such co-sharers is entitled to be in possession of each and every part of the common land. But for the purpose of the profitable occupation of the joint property it usually happens that some of the co-sharers are found to be in occupation of some portions of the land, and other co-sharers of other portions; and it is I think clearly established that where one co-sharer is in separate possession of the common land (whether or not the portion of the land which he is occupying is in excess of the area that would fall to him upon partition) without objection from, or ouster or exclusion of, the other co-sharers, he is under no obligation either to account or to pay compensation to such co-sharers in respect of the profits which have accrued to him by reason of the skill or industry which he has employed in making good use of the property while he was in possession."
Again he says:
"On the other hand, if a co-sharer, notwithstanding an objection from the other co-sharers, claims an exclusive right to occupy a portion of the land of which they have a common right of possession, or excludes or ousts from possession the other co-sharers, it is equally clear, in my opinion, that he will have to pay compensation to the other co-sharers for any profits that they may be held to have lost by reason of his exclusive occupation of the common land."
The principle laid down in this case was followed by James, J., in 'Shiva Narain v. Chandra Sekhar'. AIR (20) 1933 Pat 61S and by Noor, J., in 'Mt. Shyam Sunder. Koer v. Mt. Sheorachan Kuer', AIR (24) 1937 Pat 235. Again the question came up for consideration before a Division Bench of this Court in 'Raj Ranjan Prasad v. Khobari Lal', 20 Pat 162 and Dhavie, J., following the view taken by Page, J., in the case of 'Chandra Kishore v. Biseswar Pal 65 Cal 396, observed as follows:
"It seems to me impossible, after the Privy Council decision in 'Lachmeswar Singh v. Monowar Hussein', 19 Cal 253, to take the passage from 'Midnapur Zamindary Company's case', 51 Cal 631 apart from the facts of the case and to hold that our plaintiffs would have been entitled to compensation even if they had never objected to the defendants' exclusive use and occupation of these bakasht lands."
31. An examination of the plaint and the written statement of the appellants clearly shows-that the plaintiff demanded joint possession and his share of the produce of the land in the exclusive possession of the appellants, but the latter denied the title of the plaintiff and claimed to remain in separate occupation in defiance of the plaintiff's right to joint possession. Therefore, in view of the clear denial of the plaintiff's right, the appellants are, in my opinion, on the principle enunciated in the case which I have noticed, liable to pay him compensation for the loss of the profits to which he was put by reason of his exclusion or ouster by the appellants from the bakasht lands in suit for the years 1346 to 1349 Fasli.
32. So far as the claim of compensation for the year 1346 is concerned, the appellants' case is that they paid the compensation to defendants Nos. 7 and 8. No receipt has been filed to prove any such payment. Any payment to defendants Nos. 7 and 8, even if made, would not exonerate the appellants from their liability to the plaintiff because defendants Nos. 7 and 8 had no interest in respect of the 4 annas share claimed by the plaintiff at a time when they are alleged to have been paid, for they had already parted with their interest on the 7th September 1937, under Exhibit 4. The case of the plaintiff for compensation for the year 1347 Fasli stands on a different footing. His case was that he X grew paddy and rabbi crop over land mentioned in Schedule C to the plaint. But that story has been rejected by the Court below and the finding has not been challenged before us, whereas the appellants' case was that the plaintiff was never in possession. Therefore, on apellants' own case the plaintiff is entitled to be compensated for the year 13-17 Fasli. Similarly, he is entitled to be compensated for the years 1348 and 1349. Certain papers were relied upon by the appellants to show that they had incurred certain 'galandazi' expense;;. But the Court below has rejected the papers. In the absence of any satisfactory evidence the Court below has decreed compensation at the rate claimed in the plaint for the obvious reason that the rate at which the appellants have claimed damages from the plaintiff in money suit No. 293/9 of 1942/1944 is higher than the rate claimed by the plaintiff in the present suit. Therefore, the Court below has taken this as the safe guide for fixing compensation. It, has been urged that the comparison between the two plaints is erroneous, that in the money suit the defendants 1 to 6 claiming compensation on account of crops said to have been grown by them did not need to make any allowance on account of the cost of cultivation, whereas in the partition suit the plaintiff had to make such an allowance. Making an allowance of 25 per cent for the cost of cultivation, which appears reasonable, the claim in the money suit would be reduced to 3/4th x Rs. 451-10= Rs. 340/-. In comparing this with the corresponding figure in the plaint in the partition suit Rs. 434/-, we have to remember that the former 'covers only the paddy crop while the latter includes the rabbi crop. Hence, there is no sufficient discrepancy to invalidate the reasoning of the learned Subordinate Judge. Our attention has not been drawn to any positive evidence to show that the finding of the learned Subordinate Judge is incorrect. Hence I think the plaintiff's claim is not exaggerated and he ought to get compensation at the rate decreed by the trial Court.
Therefore, the appeal is dismissed and the decree of the trial Court according partition is affirmed. The Court below will now appoint a Commissioner for effecting partition of the lands according to the shares, following the direction given above with regard to the lands settled with Bigan Gope.
Reuben, J.
33. I agree.
34. As regards the question of title, it has been argued that in the absence of an express issue on the point it must be taken that the intention was to leave the point open. To me it appears that the proper inference is just the contrary. The question of title affected the maintainability of the suit. By giving up the point and not making any reservation in respect of it, the defendants should be taken to have admitted the title of the plaintiff.
Besides, evidence was adduced on the point in the presence of the appellants without any objection on their part, and there is 'nothing to suggest that they were taken by surprise.