MOHAMMAD HOSSAIN Vs. BEPIN BEHARI GHANTI

JUDGEMENT

(1.) This appeal is at the instance of the defendant. It arises out of a suit for recovery of khas possession and for recovery of arrears of rents and mesne profits. The plaintiffs' case is that the disputed property measuring about 2 1/2 bighas was in the khas possession of the lessor Tarini Charan Ghanti, the predecessor-in-interest of the plaintiffs, that Tarini Charan Ghanti settled the land with the defendant for using it as a garden and that it was agreed between the parties that the defendant (the lessee) would vacate the land on receipt of two years' notice after Tarini's death, if Tarini's heirs had necessity for electing the tenant. Tarini died in Jaishia 1342 B. S. and the plaintiffs who are Tarini's heirs served a notice to quit on the defendant, on 12-1-1937, requiring the defendant to vacate the land on the expiry of the month of Chaitra 1345 B. S. As the defendant did not comply, the plaintiffs brought the present suit on the 25-11-1940.

(2.) The main plea on behalf of the defendant is that he is a raiyat with a right of occupancy and he is not, therefore, ejectable on service of a notice to quit, the provision in the lease being hit by Section 178(3), Bengal Tenancy Act, that the defendant erected pucca structures with the knowledge and consent of Tarini Charan Ghanti at a considerable expense and that accordingly the plaintiffs cannot eject the defendant and that the latter is in any event entitled, to compensation.

(3.) The suit has a chequered career. The suit was decreed by the learned. Munsif on 19-2-1941. The defendant took an appeal. The lower appellate Court modified the judgment of the trial Court. The plaintiffs preferred a second appeal to this Court; the defendant filed a cross-objection. The second appeal was heard by myself and by a judgment dated 14-5-1947 the appeal and the cross-objection filed by the defendant were allowed, the judgments and decrees of the Courts below were set aside and the case remitted to the trial Court for a decision of the suit on the evidence already on record and on fresh evidence which the parties might choose to adduce.