SUSHIL KUMAR CHAKRAVARTY Vs. RAJENDRA LAL BHATTACHARIYA

JUDGEMENT

(1.) This appeal by the defendant under Clause 15 of the Letters Patent is directed against a judg-ment and decree of Mr. Justice Das dated March 24, 1948 whereby he has decreed a suit for eviction of the defendant.

(2.) The facts leading up to this litigation are broadly these. On 7-6-1857, the predecessor of one Bibhuti Bhusan Roy granted a Mokarari Mourashi lease to the predecessor of one Jatindra Nath Bose in respect of 1051 bighas and 13 cottas of land in the Sunderban area. Out of this total area, 1000 bighas were actually assessed to rent at a progressive rate. On 12-7-1936, Jatindra Nath Bose granted a mokorari mourashi lease in respect of 8 bighas and 10 cottas out of the lands of his tenancy in favour of the defendant, Sushil Kumar Chakra-varty, at an annual rent of Rs. 17/ . The estate of Bibhuti Bhusan Roy was taken over by the Court of Wards and in execution of a certificate for arrears of rent, the tenancy of Jatindra Nath Bose was sold on September 5, 1938, under the Public Demands Recovery Act and purchased by the plaintiffs. The sale was confirmed on 5-11-1938, and delivery of possession was taken on 7-12-1938. Thereafter the plaintiffs served a notice on the defendant under Section 167, Bengal Tenancy Act, claiming that the Interest of the defendant under the lease of 1936 wss an encumbrance and instituted the suit out of which this appeal arises, alleging that after the service of notice under Section 167, Bengal Tenancy Act the interest of the defendant had been avoided and that he had no longer any right to stay on the land.

(3.) The defendant contested the suit on various grounds alleging that the sale at which the plaintiffs purchased was not a rent sale and so the plaintiffs had not acquired any right to annul encumbrances, that the notice under Section 167, Bengal Tenancy Act had not been served and that, in any event, his interest was a protected one under Clause (g) of Section 160, Bengal Tenancy Act, inasmuch as under the lease of 1857 Jatindra Nath Bose had been expressly authorised in writing to create tenancies and in exercise of that authority Jatindra Nath Bose had granted the mokorari mourashi lease in favour of the defendant. The trial court held that the sale at which the plaintiffs purchased was a rent sale and as such the plaintiffs had acquired under Section 20(3), Public Demands Recovery Act the power to annul encumbrances. It further held that the notice under Section 167, Bengal Tenancy Act had been duly served upon the defendant, but it held that the interest of the defendant was protected under Section 160, Clause (g), Bengal Tenancy Act, the result being that the plaintiffs' suit was dismissed.