Dharam Singh Mahto and Another vs Sonaram Mahto and Others

Kulwant Sahary, J.—This is an appeal by the defendants against a decree of the Subordinate Judge of Purulia decreeing the plaintiffs'' suit. The suit was for a declaration of the plaintiffs'' right to grow lac on fifteen Kusum trees standing on survey plots Nos. 794, 795, and 802, and for recovery of possession of those trees.

The defence was that the trees belonged to the defendants and they grew lac thereon. It appears that previous to this suit there was another suit No. 635 of 1910 relating to the same trees and against the same defendants and that suit was decreed in favour of the plaintiffs. The plaintiffs claimed title under a patta dated 8th Sawan 1302 granted in favour of their ancestor Dhaniram Mahto and their case was that the lac reared by them on the trees in question was forcibly cut and removed by the defendants which led to a criminal case u/s 145, Criminal P.C. which was decided against the plaintiffs. The defendants claimed possession of the trees under a sanad (Ex. B). The learned Subordinate Judge has considered the evidence on both sides and has come to the finding that the plaintiffs have established their title by overwhelming documentary evidence and that practically there was no evidence to prove the title of the defendants. He has also found that the plaintiffs have been in possession of the trees within 12 years of the suit.

He further found that the present litigation related to the same area and the trees which formed the subject-matter of the litigation in the previous suit No. 635 of 1910 which, was decreed in favour of the plaintiffs. He found that the Record-of-Rights was in favour of the plaintiffs and, having regard to the patta of 1302, the decrees and the finally published Record-of-Rights, he came to the finding that the plaintiffs were entitled to a decree.

The point taken in this appeal is that the Subordinate Judge was wrong in acting upon the commissioner''s report when the commissioner himself says that he could not correctly relay the map of the previous suit No. 635 of 1910 upon the map prepared by him. No. doubt the commissioner did say that it was not practicable to relay the map of the previous suit on his map, but that was only one of the directions given to him. He was first asked to prepare a map of the disputed lac jungle with its correct boundaries. He did prepare, that map and the Court below has found that that map is correct. If that map be correct then the title of the plaintiffs is established.

It is next contended that it was pointed out to the commissioner that there were only nine trees in dispute standing on plots Nos. 794, 795, and 802 and, as only nine trees were pointed out to the commissioner as forming the subject-matter of the dispute the plaintiffs could not get a decree for fifteen trees standing on those three plots. Now this question does not appear to have been taken in the Court below. The trial Court gave a decree to the plaintiffs for the trees as claimed in Schedule. 1 on the finding that it had been established that those trees belonged to the plaintiffs. It was open to the appellants to take the point before the learned Subordinate Judge that on the report of the commissioner the plaintiffs were entitled to a decree only for nine trees and not for 15. The point does not appear to have been taken before the Subordinate Judge and there are no sufficient materials before me now in this second appeal to say which were the nine trees pointed to the commissioner by the plaintiffs. The plaintiffs have claimed the trees of plots Nos. 794, 795 and 802 and those are the trees which have been decreed to them.

It is stated that at least two of the trees standing on plot 794 stood outside the area claimed by the plaintiff as described in Schedule 1 of the plaint and as stated in para. 4 of the plaint. I am not in a position to say whether those two trees have also been decreed to the plaintiffs. In the present suit they have got a decree for the trees standing within the area as described in Schedule 1 to the plaint, and the finding is that they have established their title to those trees standing within the area described in Schedule 1. If the two trees standing on plot 794 which are admitted in para. 4 of the plaint as being outside Schedule 1 of the plaint belong to the defendants, it is clear that the plaintiffs have no claim to those trees.

This appeal must be dismissed with costs.