MAHAMMAD IBRAHIM Vs. BACHCHAMAI NESSA

JUDGEMENT

(1.) These two appeals are by the Plaintiff in two mits for ejectment on service of notice to quit under Section 106 of the Transfer of Property Act. It has been found by the courts below that one Abdul Rahim and others held a sub-tenancy under the Plaintiff and the Defendants were sub-lessees under Abdul Rahim and others. On September 22, 1935, the Plaintiff purchased the interest of Abdul Rahim and others and served a notice to quit upon the Defendants and thereafter instituted the present suits for ejectment.

(2.) The Defendants resisted the claim of the Plaintiff on the ground that their tenancy was governed by the Bengal Tenancy Act and there was a further plea in Second Appeal No. 97 of 1940 arising out of Title Suit No. 16 of 1938 to the effect that the Plaintiff had not purchased the interest of Samirannessa, who was the mother of Abdul Rahim and others, and as she had not been impleaded in the suit, the suit was bad for defect of parties.

(3.) Both the courts below have dismissed the suit upon the view that as the Plaintiff is an occupancy rdiyat, the incidents of the sub-tenancy must be governed by the incidents of the head-lease and the Defendants are, therefore, protected from eviction under the Bengal Tenancy Act. In Title Suit No. 16 of 1938 giving rise to Second Appeal No. 97 of 1940 the suit, was dismissed on a further ground that the suit was bad for nonjoinder of Samirannessa. Against the decrees of the courts below the Plaintiff filed these second appeals as early as December 18, 1939, but the hearing of these appeals was stayed by an order of the Court under the provisions of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 (Bengal Act IX of 1940), the life of which was extended from year to year by subsequent legislative enactments. After the coming into operation of the West Bengal Non-Agricultural Tenancy Act of 1949 (West Bengal Act XX of 1949), which came into force on May 5, 1949, the order of stay became inoperative and the appeals were set down for hearing. If the parties had taken steps for expeditious hearing of the appeals after the passing of West Bengal Act XX of 1949, the appeals would have been disposed of much earlier but they did not take any step and the appeals have been taken up for hearing on office reports.