Judgement

MITTER, J. :- This is a plaintiff s appeal from a judgment of reversal by the High Court, setting aside the finding of the trial court that the defendants (respondents before this court) were trespassers to the extent of the plaintiff s interest in the lands in suit and awarding a decree holding the plaintiff entitled to get khas possession of the said lands, to the extent of the said interest by evicting the defendants therefrom. Disagreeing with the finding of the trial court, the High Court held that the defendants and their predecessors in interest had, to the knowledge and without objection of the proprietors of the Touzi in which the lands are situate, been in possession thereof for more than 12 years asserting a lakheraj interest in the property and had acquired the title of Nishkardar. According to the High Court the plaintiff could only ask for assessment of rent of the lands held by the defendants for which separate proceedings were necessary. In appeal to this court, the plaintiff-appellant seeks to have the decree of the trial court restored.

2. The pleadings in the suit out of which the appeal arises suffer considerably from lack of clarity and precision. However the facts which from the background of the suit and now admit of no dispute are as follows. At the date of the suit i.e. in 1944, the defendants were by themselves or through their tenants in possession of a plot of land measuring approximately 6 bighas bearing premises No. 20/1 Chetlahat Road in Mouza Chetla. The lands of this mouza were not all included in any one permanently settled touzi but were scattered over and appertained to no less than 15 touzis numbering 1 to 6 and 8 to 16 of the collectorate of 24 Parganas. The holder of the 16 annas share of touzi No. 6 was entitled to an undivided 1/6th share of the entire mouza Chetla including the lands therein. The said mouza had never been partitioned and the lands of the 15 touzis were in consequence held jointly by the owners of the touzis. The defendants were owners of touzi No. 4. Their predecessors-in-interest were mortgagees of the said 6 bighas of land under a deed of 1877 and later auction purchased the same. In the mortgage document the said plot of 6 bighas of land - of the identity whereof there can be no dispute - was described variously as "auction purchased Nishkar land", "rent free land" and "Lakheraj land". The concurrent finding of both the courts below is that touzi No. 6 was a permanently settled estate and under the Permanent Settlement Regulation I of 1793 no Lakheraj land (meaning land free from the obligation to pay revenue) could be included therein. Before the present proceedings no one appears to have claimed any rent of the said lands of the defendants or their predecessors-in-interest.

3. The suit out of which the appeal arises was filed in the Court of the Subordinate Judge 24 Parganes West Bengal on December 8, 1944. The plaintiff based his title on a purchase at a revenue sale held on January 6, 1936. The property which was put up for auction and purchased by the appellant was the 16 annas share of the permanently settled touzi Mahal No. 6 of the Collectorate of 24 Parganas for default in the payment of revenue under the provisions of Act XI of 1859. The plaintiff got symbolic delivery of possession on June 4, 1936. Under the relevant portion of S. 37 of the said Act as in force at the time of the institution of the suit, the purchaser of an entire estate in the permanently settled districts of Bengal, Bihar and Orissa sold under the Act for the recovery of arrears due on account of the same, acquired the estate free from all encumbrances which might have been imposed upon it after the time of the Permanent Settlement. The purchaser was also entitled to avoid and annual all under-tenures and forth-with eject all under-tenants except Instimrari or Mukhurrari tenures which had been held at a fixed rent from the time of the Permanent Settlement and tenures existing at