MOBARAK HOSSEIN Vs. PUNDARIKAKSHYA BASU

JUDGEMENT

(1.) This is an appeal arising out of a suit filed by the plaintiff for khas possession on declaration of his title and in the alternative for confirmation of possession in respect of a small plot of land situated in the town of Burdwan.

(2.) The facts leading up to this appeal are as follows; On 30-1-1936, corresponding to 11th Mash, 1342 B. S. the appellant took a lease for this plot for 10 years from the predecessor-in-interest of the present respondents' Nos. 1 to 5. The lease was for a period of ten years and was to commence from a date On which the plaintiff would be given possession after the eviction of the tenants. The plaintiff's case is that such possession was obtained on 3-5-1937, that is, 17th Baisak 1344 B. S. The rent was fixed at Rs. 18-8-0 per month, that is to say, Rs. 222/- per year It would be necessary in order to appreciate the questions involved in this appeal to refer to the terms of the said lease. In the earlier part of the said document it is stated that the lessor has given lease for a period of ten years of the land with the structures on it as the lessee has prayed for taking 'bando-bust' of the same. In Clause 2 of the said lease it is mentioned that if the first party, that is, the lessor feels it necessary to take khas possession of the land during the continunce of me said lease, then he is to pay compensation for any structures that may have been built by the lessee deducting therefrom a sum of Rs. 40/- which is fixed by consent of the parties as the value of the existing structures on the said land. Clause 3 provides that the second party, that is, the lessee will be entitled to rebuild a "Kacha-khero ghar" (non-masonry thatched hut) on the said land and enjoy the same and on the expiry of the said lease he would be entitled to remove the structures so erected by him and shall give possession of the land to the landlord. If the first party, that is, the lessor, desires to retain house structures, then he shall have to pay the value of the same to the lessee less a sum of Rs. 40/-. In the schedule to the said deed the land with one structure on it is mentioned. The lease expired according to the plaintiff in the year 1947. The plaintiff's case is that before the expiry of the said lease he had pulled down the hut already existing on the said land and erected his own structures thereon with pucca plinth, wall and thatched roof and he started a restaurant on the said premises. The plaintiff thereafter put the defendant No. 6 Abdur Rahaman in charge of the said hotel, but the said Abdur Rahaman in collusion with the landlords obtained resettlement of the land from them. On 12-4-1946, corresponding to the 29th Chaitra, 1352 B. S. this suit was filed by the plaintiff against the heirs of the original landlord Sarat Chandra Basu and the defendant No. 6 Abdur Rahaman. In the plaint the plaintiff claims a declaration of his title on the footing that he was a non-agricultural tenant and he also claimed possession or in the alternative confirmation of possession. The first Court dismissed the suit having held that the plaintiff was not a non-agricultural tenant and that the lease had already expired in 1947. Against that decision there was an appeal. The appellate Court upheld all the findings of the first Court except that it gave a declaration that the plaintiff had title up to the date of the institution of the suit which was 12-4-1946. In all other respects the lower appellate Court concurred with the decision of the first Court. Against the said decision of the lower appellate Court the present appeal has been filed. The respondents Nos. 1 to 5 have also filed a Cross-objection challenging the validity of the declaration given by the lower appellate Court.

(3.) The principal question raised before us in this' appeal by Mr. Mitter, appearing on behalf of the appellant, is whether or not his client is a non-agricultural tenant. According to Mr. Mitter his client comes within the definition of non-agricultural tenant as given in the Act of 1940. 'Non-agricultural tenant' is defined in the said Act as follows: