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TMI Blog1929 (1) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the term "plaintiff" their Lordships when they use it will refer to the first respondent, who in all proceedings has been the real contestant on one side, just as when they use the term "defendant" they will refer to the first appellant, the Maharajah of Darbangha, who has in all proceedings been the real contestant on the other side; the plaintiff's case has been that the lands formed three hereditary jotes held by his ancestors with occupancy rights and enjoyed by himself and his tenants until the time when, shortly before this action was brought, he was displaced from possession. 4. In this suit, in which the plaintiff seeks to recover the lands of which he was so dispossessed, many issues were raised by the defendant. Some of these must be referred to, not because they remain active, but because the fact that the defendant raised them and failed, may have a bearing on the question which still remains for decision. That is the single question whether the 44 bighas claimed by the plaintiff or any of them form part of his three jotes. It is a mere question of identity of parcels. The doubt upon it--one raised by the defendant very late in the day--is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The plaintiff also left and made no arrangement for payment of rent. As the whole mauza practically was deserted the defendant was entitled to treat the lands as abandoned, and he did. After some years the condition of the village improved and the Raj got the lands surveyed. This took place in 1909-1911. The plaintiff having abandoned his lands these survey papers contain no mention of them as being in his family. The plaintiff's efforts to get back his old lands by depositing the rent thereof in Court, by taking kabuliyats after settlement, were all subsequent. Such was the case of the defendant as appears from the judgments in the criminal proceedings. It was no part of that case, it will be seen, that the jotes of the plaintiff were not well-known and recognised. The contention was that they had been abandoned. Nor was any doubt thrown on the identity of these jotes with the lands then claimed by the plaintiff. No case, indeed, other than one of abandonment was made and the abandonment was said to have been occasioned by a deposit of sand and growth of jungle resulting from a change in the course of the river. There is no reference to any flood. 6. The details of these c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such was the defence to this suit. As will be observed, the allegation prominently made that the lands in suit formed no part of any jote land of the plaintiff is coupled with the allegation, equally emphatic, that the plaintiff had no jote land at all in the village, and that his predecessor had none which was heritable. And the further allegation is that it was owing to an inundation by the river that, for a period extending over 12 years, the village lands were lost. A defendant with access to the papers, maps and surveys of a well-ordered zamindari cannot disclaim responsibility for these new and inconsistent statements. And they fared badly. 8. The new allegation that the plaintiff had no jote lands in the mouza, either ancestral or self acquired, was soon abandoned. Before the Subordinate Judge the defendant's Vakil was constrained to admit the existence in the mouza of three jotes in respect of which the plaintiff paid rent from time to time, and in the High Court the learned Judges, after a careful examination of the receipts and documents produced, declared their conclusion to be that the finding of the Subordinate Judge that the plaintiff's ancestors and thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd with the defendant's own case only a few years before. 11. The divergent finding of the Subordinate Judge on this question of identity is mainly based on a hypothesis which is shown by the High Court to have been mistaken. The learned Judge largely rested his finding against the plaintiff on the terms of a schedule to a summons in one of the criminal proceedings (Ex 9), in which in 1917 the 15 bighas are desecribed as being bounded on the south, east and west by the property of the Raj, instead of being described as bounded by the property of the plaintiff or his tenants, as they should have been if his case as to the 44 bighas is correct. The learned Judge attributes this statement of boundaries to the plaintiff or his agent and describes it as knocking at the head of his case. But, as was pointed out in the High Court, the boundaries given in the schedule to the summons are presumably those given to the Magistrate by a Police Officer apprehending a breach of the peace and for his views on such a subject neither party is responsible. The stated boundaries upon which in the ensuing proceedings, as the learned Judges point out, the Magistrate acted, were the boundaries shown ..... 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