DIP NARAIN SINGH Vs. KANAI LAL GOSWAMI

JUDGEMENT

(1.) THIS is the defendant's appeal, arising out of a suit which was filed for ejectment and mesne profits. The suit was eventually decreed by the learned trial Court for joint khas possession only, the prayer for mesne profits being refused. There was an appeal from this decree of the trial court by the contesting defendant and the learned Subordinate Judge who heard this appeal maintained, in substance, the decree for joint possession omitting only the word 'khas' in the facts and circumstances of this case. There was also, in the lower appellate court, a cross-objection by the plaintiffs against the trial court's finding that the decree for joint possession would be subject to payment of compensation by the plaintiffs to the defendant under Section 9 (1) (iii) of the West Bengal Non-Agricultural Tenancy Act and also against the trial Court's refusal of the plaintiffs' claim for mesne profits. This cross-objection, however, does not appear to have been dealt with by the learned Subordinate Judge, possibly through oversight or inadvertence, and it remained on the record of the lower appellate court, strictly un-disposed of, although the learned Judge, in the ordering portion of his judgment, affirmed the decree of the trial Court by dismissing the defendant's appeal, omitting only the word 'khas' from the decree for 'joint khas possession', as passed by the said trial court. From this appellate decree, the present appeal has been taken to this court by the defendant and, on the plaintiffs' behalf, a cross-objection has been filed similar in terms of the cross-objection before the lower Appellate Court. This appeal and the cross-objection are now before us for disposal.

(2.) THE relevant facts are, practically speaking, not in dispute and the points that arise are really points of law, both in the appeal and in the cross-objection. These relevant facts, which lie within a short compass, may now be briefly stated for purposes of our judgment. Those facts stand as follows:

(3.) THE plaintiffs were the holders of an eight annas interest in the land in suit under a permanent ijara from certain deities, to whom the superior interest in the said eight annas share belonged, the plaintiffs being the holders of the superior interest with regard to the remaining eight annas share and the pro forma defendants, the patnidars under the plaintiffs in respect thereof. Of the above ijara interest of the plaintiffs, the contesting defendant came to take a settlement, first, in the year 1933, under a registered lease, which is Ext. 8 in the case, dated 4th Agrahayan 1340 B. S. corresponding to 20th November 1933. This lease was for a period of five years, from 18th October, 1933 to 17th October, 1938 and the stipulated rental was Rs. 500/-per annum. On the expiry of the aforesaid lease, the defendant continued to hold the demised land and a fresh registered lease was executed between the parties on 20th October, 1938, corresponding to 3rd Kartik 1345 B. S. for a period of four years, terminating with the end of Aswin 1349 B. S. According to the English calendar, this lease, which was marked as Ext. 8 (a) in the trial court was up to 17th October, 1942, and the stipulated rental under this lease [ext. 8 (a)] also was Rs. 500/- per annum. Thereafter, also the defendant continued to hold the disputed land and, on 7th July, 1943, corresponding to 22nd Ashar 1350 B. S. , the defendant executed and registered a Kabuliyat, which is Ext. 1 in the case, at a rental of Rs. 550/- per annum for a period of four years, purporting to run from 18th October, 1942 to 17th October, 1946. This was followed by the defendant's holding over, again, from the 18th October, 1946 to 17th October, 1950, that is, for another period of four years, (Kartick 1353 B. S. to Aswin 1357 B. S.) upon an oral settlement, taken by the defendant, that is, a fresh settlement, according to the plaintiffs, and simply by holding over, according to the defendant, the plaintiffs' case being that, during this period, the stipulated rental was increased to Rs. 1,000/- per annum and there was also a payment of a lump sum premium of Rs. 1500/- for the brick-kiln in the disputed land. The application, which, according to the plaintiffs, was filed by the defendant in the plaintiffs' sherista for the purpose of taking or getting this oral settlement, has been marked as Ext. 11 in the case. With the expiry of this so-called oral settlement, the defendant's tenancy was terminated or purported to be terminated by the plaintiffs by a six months' notice to quit, ending with the expiry of the above month of Aswin 1357 B. S. , and, upon, the defendant's refusal to act in terms of the said notice, the present suit was instituted by the plaintiffs on 10th September, 1951, for ejectment and mesne profits, as stated hereinbefore.