Asutosh Mookerjee, J.

1. This is an appeal by the plaintiffs in a, suit forrecovery of possession upon declaration of title, instituted so far back as the27th February 1899. There were more than 100 defendants in the suit, with theresult that frequent deaths amongst the parties litigants have delayed thetrial of the suit both here and in the Court below." The Trial Court wasnot able to dispose of the suit till the 5th September 1904, and although theappeal was lodged in this Court on the 18th February 1905, it could not befinally heard till more than ten years later.

2. The plaintiffs claim the disputed lands as included inKismat Baldia, which they allege is comprised in estate No. 3846 purchased bythem at a sale held for arrears of revenue on the 25th March 1897. This estateconstitutes a 12 1/4-gandas share of Perganah Selimabad. Three of thedefendants Nos. 58, 59 and 60 are the recorded proprietors of estate No. 3847,another No. 61 is the proprietor of estate No. 3848, and three others Nos. 62,63 and 64 are the proprietors of estate No. 3849. These three latter estatesconstitute a 91/4 ganda each of Perganah Selimabad, so that the four estates takentogether constitute a 2-annas share of Selimabad. The case for the plaintiffsis that the lands in dispute are comprised exclusively in estate No. 3846 andthat the defendants are unlawfully in possession thereof under the colour oftenures and under-tenures which are either fictitious, or, if real, do not bindthe plaintiffs as purchasers at a sale for arrears of revenue. The Court belowhas found that these under-tenures do not bind the property in the hands of theplaintiffs and as the first defendant who is affected by this adverse findinghas not taken exception to it, either by an independent appeal or by way ofcross-objections, the question does not directly arise for consideration inthis appeal. The Subordinate Judge has further held that as the plaintiffs havefailed to prove that the disputed lands are comprised exclusively in estate No.3846, they must be deemed to be the joint lands of the entire original estateSelimabad, out of which the different estates claimed by the parties as also otherestates have been carved out. In this view, the plaintiff would be entitled toa decree for possession of a 121/4-ganda share of the disputed lands; but theSubordinate Judge has given the plaintiffs a decree for 163/4-ganda sharebecause the thak map shows that estate No. 3846 comprises such share of thelands in question. The plaintiffs are dissatisfied with this decree and haveappealed to this Court. On their behalf three alternative aspects of the casehave been put forward, namely, first, that the first defendant had acquired agood title to all the disputed lands by adverse possession as against all theother defendants and that as the first defendant had no substantial defenceagainst the plaintiffs, the latter were entitled to a decree for all the landclaimed; secondly, that as the two contesting defendants Nos. 58 and 59, thepurchasers of estates Nos. 3842 and 3847, had title to 1 anna 7 1/4 gandas (or1 anna 11 3/4 gandas according to the Thak Map), the plaintiffs were entitledto a decree for the remaining share; and thirdly, that the lands are the jointlands of the two-annas share of the original zamindari Selimabad and that theplaintiffs are entitled to a decree on that basis. Before we deal with thesequestions, we may advert to two preliminary points. It is clear, in the firstplace, that Perganah Selimabad was partitioned before the Permanent Settlement.This is conclusively shown from a letter addressed by Mr. G. Thompson,Collector of Dacca, on the 28th December 1793 to the President and Members ofthe Board of Revenue. This letter was not produced before the SubordinateJudge; in fact its existence was traced out from a passage in the history ofBackerganj by Mr. Beveridge. The letter has been produced in this Court and hasbeen admitted in evidence by consent of all the parties. As the letter containsthe early revenue history of Perganah Selimabad, which is essential for theproper appreciation of the evidence in this case, we set it out below, thoughit is expressed in quaint phraseology:

"To

W. Cowper, Esq.,

President and Members of the Board of Revenue.

Gentlemen,

"I now beg leave to address Your Board on the subjectof Perganah Selimabad and to lay such information before you regarding it aswill, I trust, enable you to furnish me with your final instructions on themode to be adopted for concluding the settlement of it.

On a view of my predecessors correspondence with your Boardrespecting this mehal I find in his letter of the 8th October 1791 he states,as the cause of the decline of the public revenue in it, that it is the jointproperty of the several numerous sharers without any separation or division ofthe land composing it, consequently that every petty talookdar or ryot issubject to be harassed by being under the control and subject to the vexatiousdemands of 18 rapacious masters: and for the removal of this grievous evil, heproposes that a general division of the perganah shall be made, observingfurther that another essential benefit would result from the adoption of thisplan in the ascertainment of the actual quantity of land possessed by the SaltByparee Talukdars, many of which he states he has every reason to believe, fromthe information given him, hold their land at a very low rate, owing to thedishonesty of the mofussil servants, and Your Board relying on the informationsubmitted by him respecting the state of the property in the perganah approvehis proposal, and at your recommendation the Governor-General-in-Council, waspleased to direct under date the 20th June 1792 that the whole of the mehalshould be held khas for the purpose of making a general division of it betweenthe several proprietors, so that each should have his share of the landcomposing it allotted to him.

After such information furnished by the late Collector whenhe had been in the office nearly three years, and in this period it was to bepresumed he had accurately informed himself of the state of the property in themehal, it will no doubt be with some surprise, the Board are now informed thatthe division recommended was totally unnecessary, the perganah having undergonea complete division and each share being separate and distinct from the otherwith the exception of the Jabberaumul and which, being disputed propertybetween the proprietors of the 111/2 anna and some of those holding theproperty of the 4 1/2 anna division, must necessarily undergo a judicialenquiry for the adjustment prior to any division of it being made.

"In order to show your Board that the perganah has undergonethe complete division stated by me, I shall beg leave to state the periods whenthe various divisions were made and the causes which gave rise to them. Thewhole property in the perganahs having been usurped by Aga Backer during theperiod he held the Waddahdharee of it, the dispossessed proprietors in the year1156 B.S. preferred a complaint to the Soubah of Bengal, who restored them tothe possession of a 41/2 anna proportion of it, and in that year the divisionof it both of land and jumma was made by Uzmuttoollah Ammeen appointed by theSoubah for the purpose, and sometime afterwards the 4 1/2 anna divisionunderwent a sub-division into ten shares between the respective proprietors ofit and now stand as follows:

g. c. Shibnarain Roy ... 12 1 Odoynarain Roy ... 9 1Doolabnarain Roy ... 9 1 Luckinarain Roy ... 9 1 Joychand Roy ... 17 2 RajChandra Roy ... 5 0 Kishenram Roy ... 10 1 Ram Ram Roy ... 7 0 Pertabnarain Roy... 6 1 Kissen Ram Roy ... 4 0

From the period of the above divisions the 111/2 and 41/2annas shares as well as the sub-division of the latter have been separate anddistinct and have had no connection with each other. Aga Backer remained inpossession of his 11 1/2 annas proportion until the year 1160 when he sufferedthe punishment of death for the crime of rebellion, and Raja Ranje Ballav wasappointed to attach the whole of his property and effects which becameforfeited to the State, the latter were disposed of by the reigning Governmentbut the land, the family of Rajbollav had sufficient influence with the Courtto retain in their possession until the end of the Bengal year 1164, when inthe Government of Mr. Nerulst (illegible) Sheevnarain, the son of Joynarain,one of the original proprietors assisted with the influence and patronage ofGocool Ghosaul, obtained restoration of the share of which the family had beenunjustly deprived by the usurpation of Aga Backer, and for the assistanceafforded by Gocool Ghosaul he was presented with a moiety of the recoveredproperty or a 5 annas 15 ganda proportion of it and had it recorded in thezemindaiy sheristah in the name of Bowannay Charan Roy. Thus the 11 1/2 annasshare of the perganah became the joint property in equal proportions ofJoynarain Roy and Gocool Ghosaul and they jointly possessed it in theseproportions until the Bengal year 1179, when at their mutual request to Mr.Barwell the division of it between them was made and each had his share of theland allotted to him. Gocool Ghosauls share continues complete as allotted himin this, division and is now the property of Cassi-naut in consequence of thepublic sale made of it to him in the Bengal year 1196. The other share of 5annas 15 gandas remaining with Joynarain Roy falling in arrear to Governmentthe sale of a moiety or 2 annas. 17 gandas 2 kara division of it was made in1189, B.S., of the liquidation of the balance and in the following year thedivision of it was made between the purchaser Joynarain Ghosaul in the name ofhis son Colly Sankar Ghosaul, and Joynarain, whereby each had, his proportionof the land allotted to him and in the same year, the heirs of the latter madea sub-division of their share of 2 annas 17 gandas 2 kara in the followingproportions:

g. c. Shibnarain ... 18 2 Doolabanarain ... 13 0 Odoynarain... 13 0 Luckinarain ... 13 0

"The Board will perceive from the above that so farfrom the perganah being the joint undivided property of the several shares asstated by my predecessor it has undergone the most perfect and completedivision practicable, into sixteen portions which accord with the number of thepresent proprietors, as well as with the number of shares stated in the public Rent Roll of the District, and from the information obtained on thefullest enquiry, I can with confidence assure the Board a more perfect divisionof it between the numerous shares cannot be made than the one which now stands.The late Collector mast, I apprehend, have been led into the error of statingit as the joint undivided property of the numerous proprietors from therepresentations of some of the talukdars stating the inconveniences which theysuffer from having their Revenue to pay to three or more sharers; this is aninconvenience which I admit some of them do labour under, but I submit it tothe Board whether it could have been avoided in the division of a perganahamong so many proprietors, and whether it was not the less to be avoided in theone in question where many of the talukdars hold land paying a Revenueexceeding several of the proprietors proportion in the perganah and which consequentlyrendered the division of it between them unavoidable, and although theinstances where a talukdar pays his Revenue to plurality of sharers are many inSelimabad, yet I must observe there are few where the lands composing thetaluks have not undergone a division between them, so as to define to eachproprietor the proportion and particular soil responsible to him for theRevenue as comprised and included in his share of the perganah and upon thewhole, I beg leave to offer it as my opinion that for the reasonsabove-mentioned the inconveniences which exist in the present division of thezamindari could not be remedied by a new one, while the latter on its operationwould make an exchange of the property between the shares to the benefit ofsome and proportionate disadvantage of others.

"The Board will, therefore, judge how far it may beadvisable to make the division directed by the Governor-General in Council attheir recommendation given under the erroneous information submitted to them bymy predecessor, indeed whether it be practicable or not, without giving justcause of complaint to some of the sharers, who will be sufferers, by theexchange of their property. I am so fully satisfied, gentlemen, in my own mindthat it cannot be effected without giving this just cause of complaint and thatthe new division can, but in a very few instances, remedy the inconveniencecomplained of in the present one, that I have thought it best not to proceed init, persuaded it was never your intention to recommend a division where it hadthis tendency, and at the same time could not but very partially remedy theinconvenience proposed by it. Although for the above reasons I have notproceeded in the division, yet I have deemed it proper to avail myself of themeasurement made of the perganah for it to ascertain by a jamma-bundy itsactual assets in order to form a judgment how far these would admit of theresumption of a part of the large abatement, amounting to Rs. 13,000, grantedto the 11 1/2 annas division of it since year 1193 B.S., exclusive of the losswhich Government has sustained annually on this reduced jamma amounting averageto Rs. 19,000. I conceived an investigation of the nature the more necessary asa perusal of Mr. Douglass correspondence with your Board on the subject ofthis mehal gave great reason to suspect that the abatement in question had notbeen altogether rendered necessary by any actual decline of its resources, butpartly by the refractory conduct of some of the talukdars refusing to pay theproper and just revenue of their lands to the zemindars and partly by theintrigues of others with the zamindari servants obtained from them improperdeductions as stated in his letters under date the 14th January, 12th April and8th of October 1791.

"As far as a judgment can be formed from thejammabandy, these suspicions seem to be well grounded inasmuch as the assetsthereby appear nearly sufficient to admit of the resumption of the whole amountof the abatement but to obtain it will require rigorous measures both towardsthe zemindars and talukdars, and am fully satisfied, gentlemen, that neitherhave one just objection to make to the jammabandy and so far from its beingoppressive that it is fair if not very moderate. I can have no hesitation to givemy recommendation that such measures be taken in all instances requiring themand that the lands, whether the instance be with the zemindar or talukdar, beformed where refused by either on the terms of the jammabandy and where theycannot substantiate any reasonable and just objection to it. I am compelled tocall upon Your Board for this authority in the conviction that without it noexertions of mine will effect the resumption of any part of the abatement in aperganah, the renters whereof have ever shown themselves disobedient and of themost refractory-disposition, and whose conduct has annually baffled theattempts of the executive officers to realize even the Revenue which they arepleased themselves to admit as justly payable by them, but it cannot benecessary for me, gentlemen, to dwell on the misconduct of these renters whereso much of it already appears upon your records in the repeated representationmade by my predecesors in my office.

"The vesting me with the requested authority to formall lands in the cases stated will, I have every reason to believe, enable meto complete the settlement of the perganah in the course of the current year,with the resumption of a great part of the abatement, but without suchauthority I must here again repeat it to the Board the very, and I may sayincredible, refractory disposition of the people, will not allow me toentertain the hope of realizing the present rated jamma, and to conclude asettlement without an abatement from it, will be altogether impracticable. YourBoard will, therefore, decide under the information herein submitted respectingthe capability of the mehal whether such conduct shall benefit the object whichinstigates it and whether the abatement shall be allowed and the resumptionproposed, be foregone, or whether it will not be more proper to notice it bypunishment, bearing out of the consideration the justice of the claim whichGovernment has to the resumption.

"In conclusion, permit me to pledge myself to YourBoard for the measures proposed by me proving efficacious and that it is myopinion, few instances will occur to render the exercise of the requesteddiscretionary power necessary, it being my belief the knowledge that I possessit will in general prove sufficient. The Board at all events may rest assuredthat I will in no instance avail myself of it to oppress and I do hope that Ihold a better place in their opinion than to be suspected of soliciting it withany such intention.

"Allow me to beg your instructions on the subject ofthe address as early as convenient.

I have the honour to be, Gentlemen, Your most obedienthumble servant, (Signed) G-. Thompson, Collector.

"Dacca

The 28th December 1793."

3. It is interesting to compare these shares with the sharesnow registered in the books of the Collector-

No. of Share estate. Annas gandas 3834 ... ... 0 6 1/4 3836... ... 0 7 3840 ... ... 5. 15 3841 ... ... 2 17 1/2 3842 ... ... 0 18 1/2 3843... ... 0 13 3844 ... ... 0 13 3845 ... ... 0 13 3846 ... ... 0 12 1/4 3847 ...... 0 9 1/4 3848 ... ... 0 9 1/4 3849 ... ... 0 9 1/4

4. This requires to be supplemented by a share of 1 anna163/4 gandas to make up 16 annas. This missing share was composed of 171/2gandas, 5 gandas, 101/4 gandas and 4 gandas mentioned in the above letter.

5. It may be observed that estates Nos. 3842-3845 make up 2annas 171/2 gandas, which together with estate No. 3841, make up 5 annas 15gandas; this taken with estate No. 3840 makes a share of 111/2 annas. EstatesNos. 384-649 make up a 2 annas, and these together with the remaining shares,namely estates Nos. 3834 and 3836 the four shares aggregating 1 anna 16|gandas, make up 41/2 annas. If these shares are borne in mind, the variousdocuments may be easily understood; this also bears out that there wasoriginally a division of the perganah into two shares 111/2 annas and 41/2annas respectively:

6. In the second place, it is plain that absolute reliancecannot be placed upon the thak map. It is clear that the mahal milanistatements were prepared only on reference to the original state of the mahalpending the decisions in the adam nisani and miscellaneous oases then undercontest. This must be borne in mind in the examination of the long series ofdocuments in the case.

7. As regards the first position taken up by the appellants,we have only to observe that it cannot possibly be sustained. Assume that thefirst defendant had annexed the disputed lands to the under-tenure claimed byher and had acquired a good title thereto by adverse possession for thestatutory period against the true owners. That does not avail the plaintiffs,as they have purchased estate No. 3846 and nothing beyond it. Take twocontinuous estates A and B, held by X and Y. Suppose X annexes a portion of Band professes to hold it as included in A, till the title of B is extinguished.If thereafter X makes default in the payment of Government revenue, what doesthe Collector expose for sale Obviously estate A as it stood at the time ofthe Permanent Settlement; he does not put up to sale the portion of B annexedto A by X. Similarly, if Y had defaulted to pay revenue, the Collector wouldexpose for sale estate B as it stood at the time of the Permanent Settlementand would not exclude from the sale the portion annexed by X. The substance ofthe matter is that the purchaser at the revenue sale is not prejudiced by anencroachment against the defaulting proprietor; nor does he reap the benefit ofan encroachment by the defaulter. To put the matter in another way, the effectof the adverse possession by X with regard to the lands of B is to make him ajoint proprietor of B along with Y. The Collector is nowise affected by theadverse possession between the proprietors of A and B and if he has occasion tosell either estate, he sells the estate as it was at the time of the PermanentSettlement. Here the plaintiffs have purchased estate No. 3846; they areentitled to all lands included in the estate at the time of the PermanentSettlement; they cannot have the advantage of, any more than they can beprejudiced by, adverse possession subsequent to that date. The firstcontention, consequently, fails.

8. As regards the second position taken up by theappellants, obviously it cannot be sustained. The plaintiffs in an action inejectment must succeed on the strength of their own title they cannot succeed,merely because the defendants may not be able to establish title to all thelands in their possession; in other words, the plaintiffs as purchasers ofestate No. 3846 cannot oust the defendants from lands, which, though notincluded in the estates claimed by them, are equally outside the estatepurchased by the plaintiffs.

9. As regards the third point taken up by the appellants, wemay observe that this covers the real controversy between the parties. TheSubordinate Judge has rejected without discrimination the documents adduced bythe plaintiffs to prove that the disputed lands are the joint lands of estatesNos. 3846-3849, No doubt, many of these documents are not registered, but theyare of some antiquity : many of them were mentioned in the litigation of 1863.It is further clear that they have not been fabricated by the presentplaintiffs, and the very fact that they are inconsistent with the extreme caseof the plaintiffs that the disputed lands are included in estate No. 3846alone, removes them from the sphere of indiscriminate suspicion; if theplaintiffs had manufactured these documents for the purposes of this suit, theymight well have been drawn up to support their maximum claim. These documents,which disclose the dealings of the various parties with separate parcels ofland as included in one or other of the shares on definite partitions by metesand bounds in Perganah Selimabad, are obviously of value, as embodyingassertions of title in times now long past. The letter of Mr. Thompson, as wehave seen, proves conclusively that there was a partition prior to 1793, andthat many of the estates then and now existing had separate parcels of landallotted to them before the Permanent Settlement. The question thus narrowsdown to this: have the plaintiffs proved that the disputed lands or any portionthereof were at the time of the Permanent Settlement the separate lands of the2-annas share now represented by estate Nos. 3846- 3849. In the investigationof this question, we are materially assisted by the proceedings in a suit forassessment of rent brought by Manikya Chandra Das against Mahes Chandra Biswasand decided by the Deputy Collector of Bakergunj on the 23rd November 1864 andby this Court on the 17th November 1865 (Exhibits 618, 619).

10. [After adverting briefly to the facts of that suit anddiscussing evidence in the present case His Lordship concluded as follows: ]

The conclusion follows that the plaintiffs have establishedthat there was a partition prior to 1793, and that plots Nos. 3, 6, 7, 9, 10and 11 of the map of 1864 fell to the 2-annas share now represented by estatesNos. 3846-3849. Consequently the plaintiffs are entitled to a decree forpossession of these plots only, in respect of a 121/4-gandas share out of 2annas, that is, if the 2 annas be treated as 16 annas the plaintiffs areentitled to a decree for possession of 4-annas 18-gandas share of plots Nos. 3,6, 7, 9, 10, 11 only. The Subordinate Judge, however, has given them a decreefor 163/4-gandas share of all the plots in suit. As the defendants have notfiled an independent appeal or preferred a memorandum of cross-objections, wecannot on an appeal by the plaintiffs, deprive them of the benefit of anyportion of the decree already made in their favour by the Subordinate Judge.

11. The result is that this appeal is allowed in part and thedecree of the Subordinate Judge modified. The decree in favour of theplaintiffs for 163/4-gandas share of all the lands claimed in the suit ismaintained. In addition to this, the plaintiffs are awarded in respect of plotsNos. 3, 6, 7, 9, 10, 11 of the map of 1864 a further decree for 4 annas11/4-gandas share, so as to bring up their share in those plots only to 4 annas18 gandas. The plaintiffs will have joint possession of the lands now decreedin their favour and also mesne profits in the way directed by the SubordinateJudge. We set aside the order for costs made by the Subordinate Judge anddirect that all parties pay their own costs both here and in the Court below.

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Baikuntha Nath Rai Chaudhuri and Ors. vs. Basanta Kumari Dasi and Ors. (26.08.1915 - CALHC)