SATISH CHANDRA KARMAKAR Vs. SHAIKH SAHADAT HOSSAIN

JUDGEMENT

(1.) This is an appeal by the defendant against a judgment of affirmance. The plaintiff instituted the suit on the following allegations : The suit land covered by C. S. Dags 171, 172 and 173 measuring .97 decimals khatian no.65 published under the Non-agricultural Land Assessment Act (Bengal Act XIX of 1936), situate Mouja Manirampore P.S. Barrackpore within North Barrackpore Municipality, with structures on portion of dag No.171 belonged to the plaintiff. The structures and land appertaining thereto measuring .10 decimals are recorded as R.S. dag No.171/198 and 171/199 which are in khas possession of the plaintiff. The remaining land with tank recorded in dag No. 172 measuring .20 decimals, Pahar of Tank recorded in dag No. 173 measuring .08 decimals and the remaining portion of dag No. 171 measuring .59 decimals, in all .87 decimals was settled by the plaintiff with the defendant at a monthly rent of Rs.10-6-8 p or annual rent of Rs. 125/- for three years from Sravan 1358 B.S. to Asarh 1361 B.S. and an unregistered kabuliyat was executed by the defendant. The plaintiff held the land under the Collector of 24-Parganas as a non-agricultural tenant for period certain upto 1972 and the defendant was also a non-agricultural tenant under the plaintiff under the provisions of West Bengal Non-Agricultural Tenancy Act and since 1358 B.S. he had been holding the land as a lessee without a lease in writing the kabuliyat being unilateral and unregistered. The defendant not having paid the rent, the plaintiff filed a suit being Money Suit No. 97 of 1957 against the defendant in the Second Court of the Munsif at Sealdah for arrears of rent upto Sravan 1364 B. S. which was decreed on admission. The plaintiff being in need of the suit land served through his lawyer a notice to quit dated April 12, 1958 determining the tenancy with the month of Asarh 1366 B.S. the tenancy being from Sravan to Asarh and the notice was duly served. The defendant however failed to comply with the said notice and his possession from Sravan I, B.S. has been that of a trespasser. The defendant was in arrears of rent for 23 months from Bhadra 1364 B.S. to Asarh 1366 B.S. amounting to Rs.239-9-4p. The plaintiff's interest being 'dakhalkar' under the Collector, his estate has not vested in the State. The plaintiff accordingly prayed for a decree of khas possession of the suit land on eviction of the defendant therefrom also for rent as aforesaid and mesne profits.

(2.) The suit was contested by the defendant who filed a written statement contending inter alia that the suit was not maintainable and that the notice was not valid, legal or sufficient. It was averred that his tenancy was for .97 decimals of land through the plaintiff surreptiously dispossessed the defendant from .10 decimals of land and got it recorded as his khas land. The money suit was for the entire tenancy. The plaintiff had no necessity for the suit land as alleged. The defendant took settlement for agricultural and horticultural purpose and for rearing fish, and his tenancy was accordingly governed by the Bengal Tenancy Act and the defendant was thus a permanent agricultural tenant having non-ejectable title. The tenancy was never a non-agricultural tenancy, and was not governed by the West Bengal Non-agricultural Tenancy Act and having occupied the land for over 12 years from 1360 B.S. the defendant had acquired a right of occupancy I the suit land. The defendant had made considerable improvements in the suit land and his name was recorded in R.S. settlement as Dakhalkar tenant. It was also alleged that the tenancy was according to Bengali calendar year from Baisakh to Chaitra and the notice was accordingly not legal, valid or sufficient. For these reasons the defendant submitted that the claim for recovery of possession and mesne profits should be dismissed.

(3.) On a trial on evidence the learned Munsif decreed the suit and an appeal therefrom was dismissed. It was held that the tenancy of the plaintiff who was recorded as 'Dakhalkar' raiyat under the Collector in record-of-rights, was governed by the Non-agricultural Tenancy Act and rent in respect thereof was assessed in accordance with the provisions of Bengal Non-agricultural Land Assessment Act, 1936. The defendant being a tenant under the plaintiff must be governed by the same Act which governs the head tenancy of the plaintiff. The entry in the settlement record about the defendant's tenancy showed him as a Dakhalkar tenant and the presumption of the entry has not been rebutted by the defendant. There is no paper on the side of the defendant to show that his tenancy was governed by the Bengal Tenancy Act. Even though the lease was taken for growing vegetable and rearing fish, it would not necessarily imply that the tenancy was for agricultural purpose. It was held that the notice was legal and valid and duly served. The Courts further held that there was nothing to show that the interest of the plaintiff was that of a tenure-holder or raiyat and the question of vesting the plaintiff's interest in State did not arise. By a concurrent judgment the Appellate Court affirmed the decree passed by the trial Court. The present appeal is against this decision.