Haro Mandal vs Dhiranath Das and Others

Adami, J.—This second appeal comes from the Santal Parganas. It appears that one Mt. Sahodamani succeeded to the properties of her husband, that is to say, 63 bighas 16 kathas in village Sour Pachaisa. Shamlal Mandal, the prodhan of the village, was her bhoulidar and in Mr. Wood''s settlement in 1873 and Mr. Craven''s settlement in 1879 Sahodramani and Shamlal were recorded jointly for the lands, but an entry was made that Shamlal was the bhoulidar. In the settlement of 1908, the Settlement Officer refused to record Shamlal as having a joint interest on the ground that the interest of any reversioners there might be would be prejudiced. Then Sahordramani and Shamlal put in a petition of compromise before the Settlement officer asking that they might be jointly recorded, but this was refused in 1909. On appeal the order of the Settlement officer was affirmed on the ground given by the Settlement officer. Thus Sahodramani was alone recorded in the settlement of 1908; she remained in possession till January 1916 when she died. On her death Rako Mandal, son of Shamlal, who had succeeded as prodhan, declared that Sahodramani had died issueless and without heirs and therefore the jote was faut ferari, and asked to be allowed to re-settle it with some raiyat of the village. The Sub-Divisional Officer remembered what had happened in the settlement proceedings and ordered an inquiry to be made as to the whereabouts and existence of Jhumak, the brother of Sahodramani''s husband, who had put in an objection during the settlement proceedings. A peon was sent out to report if Jhumak existed and whether Sahodramani had left any one else claiming to be her heirs.. The peon came back and reported that he could not find Jhumak or any heir of Sahodramani. On the 17th November 1916 the Sub-Divisional Officer passed the following order:

Read the peon''s and chowkidar''s report. They failed to trace out any heir of the deceased raiyat; the prodhan may settle the land according to the village record-of-rights: any one aggrieved by his action may come up to Court with an objection.

As a matter of fact Jhumak was at Bousi, a village only eight miles from Sour Pachaisa. Rako Mandal, however, reported, on the 5th of January 1917, that he had settled the lands with the defendants Mohanlal Mandal, his nephew, and Haro Mandal, his brother. On that report the Sub-Divisional Officer recorded the order "File," on the 11th January 1917.

On the 11th May 1917, Jhumak Das, having heard what had happened, came forward and filed an objection, but it was rejected, and he then filed another objection which was again rejected on the 23rd August 1918, on the ground that, as Jhumak had been absent from the village and had no lands there, Rule 27 of the Santal Rules would apply to the effect that in the settlement of fouti lands a resident jamabandi raiyat should be preferred to an heir of the recorded raiyat living miles off from the village in which the lands were situate. The order of the settlement officer on the 23rd August 1918 was to the following effect.

"As already ordered Jhumak Das should go to the civil Court to establish his claim to get the land as legal heir of the deceased recorded raiyat, Mt. Sahodramani, and that, if he succeeds, he would be entitled to get possession of the land on payment of whatever sum the settlement-takers may be found to have actually paid to the prodhan as arrear rents for the holding." I may note here that the defendants Mohanlal Mandal and Haro Mandal had been allowed settlement of the jote on condition that they paid up the sum due as arrears which amounted altogether to Rs. 778-11-6, and this sum was paid by them to the prodhan.

Jhumak Das died in 1919 before he could move the civil Court, and it was not until the 31st August 1921 that his sons, the present respondents, filed the suit out of which this second appeal arises.

The plaintiffs in this suit prayed for a declaration that they, being the next reversioners of Mt. Sahodramani, were entitled to get the lands left by her, and that the defendants were not entitled to retain the property under the guise of its settlement as fouti. They asked also for a declaration that the order of the 17th November 1916, allowing the prodhan to settle the land, was obtained by fraud since the land was not fouti. Thirdly, they asked that the order of the 23rd August 1918, passed by the Sub-Divisional Officer in Revenue Miscellaneous Case No. 203 of 1916-17, should be set aside, and they asked that they should be given possession of the lands in suit without being required to pay any rent to the prodhan, who, with the other defendants, had been in possession throughout.

The trial Court found that the plaintiffs had proved that their father Jhumak was the reversionary heir of Mt. Sahodramani, and after his death they were the next reversioners. It was found, too, that Jhumak Das was the brother of Sahodramani''s husband.

The question whether the suit was barred by Article 14 was considered by the Subordinate Judge and he held that that article would not apply, as the success of the plaintiffs in the suit was not contingent on the setting aside of the order passed by the Sub-Divisional Officer.

He decided that the payment of Rs. 778-11-6 by the defendants to the prodhan was proved, and considered the contention that Rule 27 of the Attestation Rules would prevent settlement with Jhumak or his heirs. The Subordinate Judge held that Rule 27 could not operate to change the order of succession laid down by the system of law and religion to which a family belongs. He found that the plaintiffs were entitled to recover possession without further payment to the defendants. He therefore decreed the plaintiff''s suit.

The learned District Judge has upheld the Subordinate Judge on every point and dismissed the appeal which was brought before him.

The only points brought before us in second appeal are the point of limitation and the point of the liability of the plaintiffs to repay the defendants the sum of Rs. 778-11-6 which the defendants paid to the prodhan.

It is strenuously contended before us that Article 14 of the Schedule to the Limitation Act barred the suit, since it would be necessary to set aside the orders of the Sub-Divisional Officer before the plaintiffs could recover possession.

The learned District Judge has dealt with this contention and overruled it. The learned vakil relies on the cases of Parbatti Nath Dutt v. Rajmohan Dutt (1902)29 Cal. 367. Ganesh Shesho Deshpande v. The Secretary of State (1920) 44 Bom. 451, and Raghunath Prasad v. Kaniz Rasul [1902] 24 All. 467, also on the case of Nagu v. Salu [1891] 15 Bom. 424.

Now, if in the present case it would be necessary, in order to allow the plaintiffs to succeed, to set aside any order of the Sub-Divisional Officer, there is no doubt that Article 14 would apply. But in the present case the relief sought is primarily declaration that the plaintiffs are entitled to succeed Mt. Sahodramani as her next reversioners, and for such a declaration the setting aside of the order of the Sub-Divisional Officer would not be necessary. It is true that the third relief asked for by the plaintiffs is the setting aside of the order of the Sub-Divisional Officer; but, if the first relief is granted, the third relief would not be required; and then, if we examine the order of the Sub-Divisional Officer made on the 23rd August 1918, which I have cited above, it is clear that there is no final order, and the plaintiff was told that, if he succeeded in obtaining a decree establishing his claim to get the land as legal heir, he would be entitled to get possession of the land on payment of whatever sum had been paid by the defendants. Therefore, it is quite clear that there would be no necessity to set aside the order of the Sub-Divisional Officer; for the suit is really a compliance with the order; nor would it be necessary to set aside the order of "File" passed when the prodhan reported that he had settled the jote with the defendants. The plaintiffs having obtained a decree declaring their title would enter on the land as heirs of Sahodramani. Therefore, I think, that the learned District Judge was quite correct in refusing to set aside the decree of the lower Court on the ground of limitation.

There is another view which might be taken also, and that is that in the plaint the plaintiffs asserted fraud, and though there is no distinct finding as to fraud in the judgments of the lower Courts, the tenor of those judgments is to show that Rako Mandal, the prodhan, acted somewhat fraudulently in allowing the existence of Jhumak to be concealed. If there were fraud found, then the question of limitation would not come in; but it is unnecessary to consider this view of the question.

The only point in which I would differ from the learned District Judge is with regard to the payment of Rs. 778. The reason given by the lower Courts for refusing to order payment of this amount by the plaintiffs is that the defendants, during the years they have been in possession, have been able to obtain profits from the land exceeding in value the amount of Rs. 778 paid by them. I do not think that this is the right view to take. The Courts below in fact have entered into the question of mesne profits and have set off those mesne profits against the payment. In their plaint, para. 18, the plaintiff''s state that they will bring a separate suit for mesne profits and they do not ask in the present suit for mesne profits. If there is to be a set-off that set off should be in the suit for mesne profits. It is not open to the Courts in the present suit to reckon what the mesne profits are and to set them off against the Rs. 778. It seems to be assumed, too, that the Rs. 778 went into the hands of the prodhan; the amount represented the arrears due and would have to be paid to Government by the prodhan. It is only right, in my opinion, that the plaintiffs should repay to the defendants, when they recover possession, this sum of Rs. 778-11-6 paid towards arrears by the defendants, and I would, therefore, modify the decree of the lower Courts to this extent that it be declared that the plaintiffs are entitled to recover possession of the lands on their payment to the defendants of the sum of Rupees 778-11-6 within a period of six months from this date. To that extent the decree of the lower Courts will be modified.

Each party will bear its own costs in this Court.

Bucknill, J.

I agree.