ESMAIL PAILAN Vs. SAILENDRA NATH

JUDGEMENT

(1.) In this second appeal, which is at the instance of the tenant-defendant, some important and interesting questions arise for consideration. They relate chiefly to the rights of the parties who are admittedly the landlords and the tenant with regard to the trees on the suit land, and the ascertainment of those rights involves inter alia the determination of their status, that is, within which class of tenants under the Bengal Tenancy Act the tenure-holder, including the under-tenure holder, raiyat, and under-raiyat, they respectively fall, and, further, whether the tenant defendant has a right of occupancy in his land. Having regard to the findings of the Court of appeal below, they also necessarily include within their scope the specific question of the rights of an under-raiyat having a right of occupancy in his land with regard to the trees thereon. The determination of these questions depends upon the interpretation of the patta, Ex. 1, under which the tenancy in suit Vas created and upon the relevant provisions of the Bengal Tenancy Act, to wit, Sections 3 (5), 23, 23A, 48G, 178 and 179.

(2.) The suit out of which this appeal arises was brought by the landlords for a permanent injunction restraining the tenant-defendant from cutting away and/or appropriating the timber of certain trees on the suit land upon a declaration that the said timber belonged not to the tenant but to the landlords and that, as such he, the tenant, had no right to the same. The plaintiffs' case was that the tenant in suit was governed by the terms of the patta, Ex. l, and, under the said terms, the tenant-defendant had merely a Falkar right in respect of the trees in question and was not entitled to cut away or appropriate the same. In the plaint there was also an averment that, under the patta, Ex. 1, the defendant had mourashi mokarari right in the land in suit and the recording of the latter's status in the record of rights as that of an under-raiyat having a right of occupancy by custom in respect of the disputed land was erroneous.

(3.) The material defence was that the record of rights was correct, with the consequence that the tenant-defendant was an under-raiyat in respect of the suit land having a right of occupancy therein by custom and was, as such, entitled to cut away and appropriate all the trees upon his said land, any contract to the contrary notwithstanding, such contract being void under the Bengal Tenancy Act.