Judgement

Appeal (No. 87 of 1923) from a decree of the High Court (January 17, 1921) affirming a decree of the Subordinate Judge of Nadia.

Law. Rep. 51 Ind. App. 293 ( 1923- 1924) Midnapur Zamindary C ompany, Limited V. Naresh Narayan Roy 84

The suit was brought by the first respondent on August 8, 1912, for partition of certain char lands in which he and the appellant company were co-sharers, for a declaration that the company had no jote right (as they claimed) in the lands, for possession and other relief.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge made a decree substantially as prayed ; on appeal that decree was affirmed by the High Court (Woodroffe and Walmsley JJ.).

1924. March 17, 18. De Gruyther K.C. and Kenworthy Brown for the appellants.

Dunne K.C. and Wallach for the first respondents.

April 7. The judgment of their Lordships was delivered by

SIR JOHN EDGE. This is an appeal by the defendants, the Midnapur Zamindary Co., Ld., which will be hereafter referred to as the Midnapur Company, against a decree, dated January 17, 1921, of the High Court at Calcutta, which affirmed a decree, dated August 19, 1915, of the Subordinate Judge of Nadia, by which the claim of the plaintiff, Kumar Naresh Narayan Roy, in Suit No. 557 of 1912, had been decreed with costs. The other parties to the litigation are Rani Hemanta Kumari Debi and the Secretary of State for India in Council, who are defendants and respondents, but they have not appeared and are not represented in this appeal.

The suit in which this appeal has arisen was brought in the Court of the Subordinate Judge of Nadia on August 8, 1912, by the plaintiff, who is of the Putia Raj family, and who claimed a decree for the partition of certain lands in which he and the Midnapur Company were co-sharers, a declaration that the Midnapur Company had no jote rights in any of the lands of which he sought partition, and a decree for possession after partition by ejectment of the Midnapur Company, and other reliefs.

By the written statement of the Midnapur Company it was denied that the plaintiff was entitled to a decree for partition. The right of the plaintiff to a decree for partition is not now disputed. Partition is the remedy which a co-owner has if he and the other co-owners cannot agree as to how the lands which they hold in common should be managed see Robert Watson & Co. v. Ram Chand Dutt. (L. R. 17 I. A. 110.)]

There were two, and, in the opinion of their Lordships, only two, substantial defences, if proved, put forward by the Midnapur Company to the plaintiffs suit. The first of these defences was that the plaintiff had not been in possession within twelve years of August 8, 1912, of the lands in question in which he alleged that the Midnapur Company had no jote rights, and, consequently, that his claim to eject the Midnapur Company from those lands was barred by the limitation of art. 142 of the first schedule to the Indian Limitation Act, 1908. The other substantial defence, if made out, was that the Midnapur Company held jote rights in the lands in question. These two defences their Lordships will consider later. There were two other matters which were put forward by the Midnapur Company in the assertion of their claim to jote rights in the lands in question. One of them was an order which was made on September 20, 1909, by Mr. Ezekiel, the Collector, that the Midnapur Company should be recorded in the settlement papers as tenants with rights of occupancy. That order applied to the lands now in question and was not appealed from. It was made in the course of a new settlement from year to year. The other matter to which their Lordships allude was the contention that the plaintiff was estopped from challenging the right of the Midnapur Company to jote rights by a kabuliyat of February

Law. Rep. 51 Ind. App. 293 ( 1923- 1924) Midnapur Zamindary C ompany, Limited V. Naresh Narayan Roy 85

9, 1912, to which he was a party, and by whi