MANINDRA NATH MUKHERJEE Vs. NITAI CHANDRA HAZRA

JUDGEMENT

(1.) The defendant is the appellant before me. The plaintiff filed the suit for ejectment of the defendant from the disputed tank and its banks. The learned Munsif dismissed the suit. The plaintiff filed an appeal. The learned Subordinate Judge reversed the decree of the learned Munsif and decreed the suit.

(2.) The plaintiff alleged as follows : One Harendra and one Nagendrabala were non-agricultural tenants under a niskar touzi-holder in respect of holding No. 8 Mallickpara Lane, Howrah within the municipal town of Howrah. Nagendrabala died leaving two daughters Saibalini and Mira who in their turn surrendered their interest in the holding to Nagendrabala's reversioner Nripen. Thereafter there was a partition between Harendra and Nripen and the disputed property comprising a tank and its banks came to the share of Nripen. The plaintiff subsequently acquired the interest of Nripen. The defendant was a lessee in respect of the jalkar of the disputed tank. The plaintiff determined this lease by service of notice to quit under Section 106 of the Transfer of Property Act but the defendant failed to vacate and hence the suit. The defence was that one Benimadhab was a tenant of the tank and its banks under Harendra and Nagendrabala. One Kalicharan was the heir of Benimadhab. The defendant had taken lease of the tank from Kalicharan and was in possession of the same. Kalicharan surrendered his tenancy of the tank and its banks in favour of Harendra and Nagendrabala but they treated the defendant as a tenant of the tank and its banks and accepted rent as such. The service of notice was not disputed but it was said that the notice did not determine the defendant's tenancy.

(3.) The learned Munsif found that the plaintiff was the owner of the tank and its banks but the defendant was a thika tenant under the plaintiff governed by the Calcutta Thika Tenancy Act and so the defendant was not liable to be evicted and the suit was dismissed. The learned Subordinate Judge has found that the defendant was not in any case governed by the Calcutta Thika Tenancy Act. He also found that the defendant was a lessee in respect of the jalkar right in the tank and that his lease was determined by service of notice to quit. Before the learned Subordinate Judge one more point was mooted, viz., whether the interest of the plaintiff had vested in the State of West Bengal under the Estates Acquisition Act, 1953. The learned Subordinate Judge found that the interest of the plaintiff had not vested in the State. He, accordingly, decreed the suit.