Judgement

Consolidated Appeal (No. 117 of 1920) from a judgment seven decrees of the High Court (February 9, 1915) reversing seven decrees of the District Judge of Patna, who affirmed decrees made by the Subordinate Judge.

The suit related to lands within the regularly settled estate the appellants. At the recent settlement the lands had been entered in the record of rights as tenures of the respondents under the appellants, without any mention of rent, and with the word "malikana" in the column of remarks. The appellants in 1913 instituted seven suits in the Court of the Subordinate Judge of Patna against the respondents. By their plaints they stated that the lands in question were within the ambit of their zamindari, and alleged that the respondents were merely cultivating tenants, and that the entries in the record of rights were incorrect. They claimed declarations that the lands formed part of their proprietary right, that the respondents were not malikanadars, nor had any right other than raiyati right, and that the respondents were liable to pay rent under the bhaoli batai system in the proportion of 22Jseers per maund; and for further relief. The respondents by their defences pleaded that they had held possession as owners for over eighty years, and that in any case the appellants claim was barred by limitation.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge made decrees in favour of the appellants, and those decrees were affirmed by the District Judge on appeal. The District Judge found that there was no evidence to show that the respondents had ever paid rent, and that they certainly had not done so since 1839. He was, however, of opinion that, as the effect of the resumption proceedings in 1839, the respondents became tenants of Umatul Zahora with whom the permanent settlement was made, and that they had failed to show that they had adverse possession against the absentee owners.

Upon a further appeal to the High Court the decrees were set aside and the suits dismissed. The learned judges (Mullick and Jwala Prasad JJ.) were of opinion that there was no evidence to warrant the finding that the respondents were tenants of the appellants, and they concurred in the finding of the District Judge that no rent had been paid. They held that the resumption proceedings did not create the relation of landlord and tenant between the respondents and Umatul Zahora and her successors. On that point Mullick J. referred to Bir Chunder Manikya v. Raj Mohun. (( 1889) I.

L. R. 16 C. 449.) They were of opinion that the thakbast papers of 1840 were not fraudulent, and that the entry therein constituted the respondents possession adverse, with the result that the suits were barred by limitation.

1922. April 28; May 1, 2. De Gruyther K.C., and J. K. Roy for the appellants.

Dunne K. C., and Dube for the respondents.

The arguments sufficiently appear from the judgment.

Reference was made by the appellants to Prasanna Kumar Mookerjee v. Srikantha Rout (I. L. R. 40

C. 173.), and, on the question as to the validity of the second appeal, to Durga Choudhrain v. Jawahir Singh Choudhri. (( 1890) L. R. 17 I. A. 122, 127.)

July 7. The judgment of their Lordships was delivered by

MR. AMEER ALI These seven consolidated appeals from seven decrees of the High Court of Patna arise out of the same number of suits brought by the plaintiffs in the Court of the First Subordinate Judge of Patna on February 8, 1913, in the following circumstances.

The plaintiffs are part proprietors of a mahal paying revenue to Government consisting of one mauza named Amarpur Jabar, which bears on the collectors register No. 9/4377, and is assessed with a jama of Rs.225 odd annas. The pro forma defendants in the several suits are the co-sharers of the plaintiffs, and own the remaining share of the mahal. The contesting defendants in the suits hold separate lands within the mauza, which in the aggregate amount to a considerable part of the vi