SASHI BHUSAN BISWAS Vs. BHOWANIPORE ZEMINDARY CO. LTD.

JUDGEMENT

(1.) These two appeals are at the instance of the defendant. They arise out of two suits instituted by the plaintiff-respondent The Bhowanipore Zemindary Co., Ltd. The allegations on which the plaintiff came to court are that the plaintiffs purchased touzi No. 194 at a sale for arrears of revenue, that thereafter the plaintiff annulled the interest of the defendant which was not a protected interest and as such the plaintiff is entitled to khas possession by eviction of the defendant from the disputed lands which measure less than 50 bighas in area. There was also a claim for mesne profits.

(2.) The defence of the defendant No. 1 in Suit No. 288 and defendant No. 4 in Suit No. 289 is that the defendants are in possession of the disputed lands in nishkar Brahmottar right from time immemorial from before the Permanent Settlement of Bengal and that these lands were not included within the mal assets of touzi No. 194 and as such the interest of the defendants was not annullable. The trial court accepted the defence case, and dismissed the plaintiff's suit. On appeal by the plaintiff respondent the judgment and decree of the trial court have been set aside and the plaintiff's suit decreed with costs, the plaintiffs being declared to be entitled to recover khas possession. Against the judgment and decree of the lower appellate court the contesting defendant Sashi Bhusan Biswas has preferred these appeals.

(3.) The only question which falls to be determined in these appeals is whether the interest of the defendants can be annulled by the plaintiff. This contention has been based on the ground that the disputed land is not a part of the mal assets of the touzi and that in point of fact it was held by the defendant appellant in nishkar Brahmottar right.