Patna High Court
Bara Lal Nawal Kishore Nath Sahi Deo vs Jaleshwar Dayal Singh And Ors. And Babu ... on 17 May, 1917
Equivalent citations: 40IND. CAS.588, AIR 1917 PATNA 357
JUDGMENT Chamier, C.J.
1 This is an appeal against a decree of the Judicial Commissioner of Chota Nagpur, modifying a decree of the Subordinate Judge of Ranchi. The appeal arises out of a suit brought by the respondents for possession of plots which are numbered in the plaint from 1 to 7. The respondents' case was that all seven plots lay within their village Hesel and were in their possession till they were dispossessed by reason of certain proceedings taken by Survey and Settlement Officers, which resulted in the seven plots being demarcated as part of the village Ranchi belonging to the appellant. Besides the appellant other persons were impleaded as defendants on the ground that they were in possession of the property as tenants or otherwise. The Subordinate Judge dismissed the suit except as to a portion of plots Nos. 5 and 6. The respondents appealed and the appellant filed a cross-appeal. The Judicial Commissioner allowed the appeal of the respondents and decreed the suit as regards plots Nos. 2, 3, 4, 5 and 6 but dismissed it as regards plots Nos. 1 and 7. It appears that in the Court of the Judicial Commissioner the respondents withdrew their claim to plots Nos. 1 and 7 and we are no longer concerned with those two plots. As regards plots Nos. 2 to 6 the Judicial Commissioner differing from the Court of first instance came to the conclusion that they all lay within the respondents' village Hesel and were in possession of the respondents either directly or through tenants till the survey proceedings of 1908 which resulted in the dispossession of the respondents. The only point taken on behalf of the appellant is that the suit is barred by the Bengal Survey Act V of 1875, and reliance is placed on the decision of the Calcutta High Court in Bisseswari Koer v. Ram Protap Singh 4 Ind. Cas. 547 : 14 C.W.N. 366. That was a case in which the plaintiff sued for confirmation of possession alleging that he was in possession. He failed to prove possession and the Court held that the suit was barred by Section 62 of the Survey Act. The judgment in that case distinguishes that case from such a case as the present, in which the respondents being admittedly out of possession claimed possession as owners of land from which they had been dispossessed by reason of Survey and Settlement proceedings. The present suit was based on the alleged title of the respondents, a title which has been found to be proved by the lower Appellate Court. There is nothing in the decision referred to which in any way shows that the present suit is barred. On the contrary there are passages in the judgment of that case which show that the present suit is not barred by the Survey Act. The Judicial Commissioner in a lengthy judgment examined all the oral and documentary evidence and came to the conclusion that the respondents had proved their case. There is no reason whatever for not accepting his finding and if his finding is accepted the defendants' Appeal No. 621 of 1916 must be dismissed.
2. Appeal No. 947 is an appeal by the plaintiffs in the suit, who are respondents to appeal No. 621. It relates to plots Nos. 3, 5 and 6. Plot No. 3 was in possession of the second defendant to the suit, Babu Basanta Kumar Banerji, and in the Court of the Judicial Commissioner the plaintiffs said that they did not wish to recover khas possession as against him. As regards Nos. 5 and 6 it appears that those plots or parts of them are in possession of some of the other defendants. They have shown no right to retain possession of those plots and the decree in respect of plots Nos. 5 and 6 should, in my opinion, be a decree for khas possession. To this extent I would allow Appeal No. 947 but I would dismiss it as regards plot No. 3. In Appeal No. 947, I would make no order as to costs. Appeal No. 621 should, in my opinion, be dismissed with costs.
Jwala Prasad, J.
3. I concur. There is nothing in the Survey Act itself to bar a suit like the present one to recover possession based on title.