ABDUL SAMMAD Vs. JITOO CHOWDHURY

JUDGEMENT

(1.) THE suit out of which this appeal arises was instituted by the plaintiff for ejectment of the defendant from cadastral survey plot No. 633 of Khatian 587 Mouza Garulia on termination of the defendant's tenancy by a notice to quit under Section 106, T. P. Act. The Court of appeal below dismissed the suit and hence this appeal is by the plaintiff.

(2.) THE plaintiff's case is that he took a lease of 9 cottas of land under a patta dated 19th POUS 1308 (3rd January 1902) from his two uncles Sk. Osman and Sk. Meajan and out of this area of 9 cottas the plaintiff granted a sublease to the defendant for three cottas for residential purposes; in the record of rights finally published in 1931 the defendant was recorded as an under -raiyat with a right of occupancy. This entry was challenged by the plaintiff as wrong. The plaintiff further alleged that he served a notice to quit under Section 106, T. P. Act, on 21st Jaistha 1342, by registered post and the defendant accepted the same with the result that the tenancy was determined with effect from 1st Sravan 1342.

(3.) AGAINST this decision the plaintiff has filed this second appeal, the hearing of which under Order 41, Rule 11, Civil P. C., was stayed by an ex parte order dated 7th April 1940, under Section 3, Bengal Non -agricultural Tenancy (Temporary Provisions) Act. On 2nd December 1947, that ex parte order of stay was vacated and the appeal was admitted under Order 41, Rule 11. On 20th July 1948, the appeal was taken up for final hearing by B. K. Mukherjee J. before whom it was argued by the appellant that if the tenancy created by the potta dated 19th POUS 1308 was a non -agricultural tenancy at its inception, the subsequent event by which the rights acquired under the potta merged in the superior rights of the lessor, could not affect the status of the subordinate tenant. Though this was an important question in the case it was not raised in the Court below and Mukerjea J. accordingly acting under Order 41, Rule 25, Civil P. C., remitted the following issue to the lower appellate Court : 'What was the status of Osman at the time when the potta of 1308 was granted.' The lower appellate Court was directed to take fresh evidence and record a finding on the point.