DURGESH NANDINI DEVI Vs. AOLAD SHAIKH

JUDGEMENT

(1.) The subject-matter of this litigation is a small plot of land forming part of the bank of a tank known as 'Dalan Pukur'. Originally, it formed part of a patni, the owner of the patni being one Annada Prosad Saha Choudhury. The patni was sold on 16-5-1936 under Regulation VIII and purchased by Bithaldas Kuthari. The plaintiff's case is that Bithaldas settled the property with Ahibhusan Ghosh on 20-3-1940 and thereafter the plaintiff purchased this particular land on 15-2-1944 by a registered kobala. It is alleged that he was dispossessed by the defendant on 9-2-1945.

(2.) The defence is one" of a right of tenancy which it is said has not been determined. The defendant contends that one Hatu Shaikh took permanent settlement of some lands including the land in dispute in April 1934, and that Hatu Shaikh who exercised possession thereafter and regularly paid rent sold half of the land covered by the jama to the present defendant on 26-3-1942. It is said that some time after that on partition between Hatu Shaikh and the defendant the present plot fell in the defendant's share and the defendant has since then been in possession thereof. The defendant also denied that the plaintiff had acquired any title by purchase.

(3.) The trial Court "held that the plaintiff had the title to the land as mentioned and disbelieved the defendant's story of any tenancy right in favour of Hatu Shaikh. It further held that even if there was any such tenancy, Hatu was merely a tenant-at-will and the tenancy determined as soon as Hatu assigned his interest. It accordingly held that the plaintiff was entitled to a decree for declaration of title and for khas possession and ordered accordingly. In appeal-the learned Subordinate Judge agreed with the trial Court that the plaintiff's title had been proved. Disagreeing with the trial Court as regards the genuineness of certain rent receipts which the defendant had put in evidence in support of his case of tenancy, the learned Subordinate Judge held that they were genuine and from those a tenancy could reasonably be inferred. As regards the period of the tenancy he held that in law it should be considered to be a tenancy from month to month so that without determination by proper notice to quit the prayer for eviction could not succeed. Accordingly, he allowed the appeal while maintaining the decree in so far as it declared the plaintiff's title to the suit land and rejected the plaintiff's prayer for khas possession and ordered that the 'plaintiff should get possession in the Suit land through defendant as a monthly tenant under the plaintiff in respect of the same. The present appeal is by the plaintiff.