Judgement

T. L. VENKATARAMA AIYAR, J. : This is an appeal by the plaintiff against the judgment of the High Court of Calcutta in a second appeal which, in reversal of the judgments of the Courts below, dismissed his suit, which was one in ejectment.

2. The suit property is a Mahal of the extent of 84 Bighas 18 Cottas situated within lot Ahiyapur village, which is one of the villages forming part of the permanently settled estate of Burdwan Zamindari. This village was granted by the Maharaja of Burdwan in Patni settlement to the predecessors-in-title of defendants 1 to 7. The exact date of this grant does not appear, but it is stated that it was sometime prior to the enactment of the Bengal Patni Taluks Regulation (Bengal Regulation VIII of 1819), hereinafter referred to as the Regulation, and nothing turns on it. The Mahal with which this litigation is concerned, had been at or prior to the permanent settlement set apart as Choukidari Chakran lands; that is to say, they were to be held by the Choukidars for rendering service in the village as watchmen. In 1870, the Village Chaukidari Act (Ben. VI of 1870), hereinafter referred to as the Act, was passed, and S. 48 of that Act provides that all Choukidari Chakran lands assigned for the benefit of any village shall be transferred to the zamindar of the estate in the manner and subject to the provisions contained in the Act. Under S. 50, the Collector is authorised to make an order transferring those lands to the Zamindar after determining the assessment payable thereon, and S. 51 enacts that,

"Such order shall operate to transfer to such zamindar the land therein mentioned subject to the amount of assessment therein mentioned, and subject to all contracts theretofore made, in respect of, under, or by virtue of, which any person other than the zamindar may have any right to any land, portion of his estate, or tenure, in the place in which such land may be situate."

3. In accordance with the provisions aforesaid, the suit properties were transferred to the Maharaja of Burdwan, and on June 3, 1899, he granted the same to the predecessors-in-title of defendants 1 to 7, who at that time held the Patni interest in respect of lot Ahiyapur. Under the grant which has been marked as exhibit B, the yearly rental for the area was fixed at Rs. 126-8 as. out of which Rs. 84-4 as., had to be paid to the Panchayat within the 7th of Baisakh for being credited to the Choukidari Fund and the balance of Rs. 42-4 as., was to be paid to the Zamindar within the month of Chaitra. Exhibit B also provides that in default of payment of kist the lands are liable to be sold in proceedings taken under the Bengal Regulation VIII of 1819. Acting under this clause, the Maharaja applied under S. 8 of the Regulation to bring the suit lands to sale for realisation of arrears, and at the auction held on May, 15, 1937, himself became the purchaser. On February 13, 1941, he granted the lands again on Patni to the appellant, who filed the suit, out of which the present appeal arises, in the Court of the Subordinate Judge, Burdwan, to recover possession thereof from the defendants alleging that they had trespassed thereon. The respondents contested the suit on the ground that, in fact, there were no arrears of rent due under Exhibit B, and that the sale was therefore void.

4. The Subordinate Judge held that there were arrears of rent due from the respondents, and that further as they had not sued to set aside the sale under S. 14 of the Regulation within the time limited by law, they could not set up its invalidity as a defence to the action in ejectment. The defendants preferred an appeal against this judgment to the District Court of Burdwan, and there raised a new contention that under the grant, Exhibit B, the suit lands became part of lot Ahiyapur, and that a sale of those lands was illegal as being a sale of a portion of the Patni . The District Judge after observing that the point was taken for t