KRISHNA LAL SAHA Vs. PANCHANAN DUTTA

JUDGEMENT

(1.) THIS second appeal is by the defendant. The plaintiffs instituted the suit for ejectment of the defendant from two plots, namely, c. s. plots Nos. 787 and 793 of mouza Satigachi, on the ease that the defendant was a tenant under a written lease from 1st February, 1939 to 31st January, 1949 and that under the terms of the written lease, the defendant was bound to vacate on the expiry of the term, and the defendant having failed to do so inspite of the demand of the plaintiff, the plaintiff had to institute the suit on 4th July, 1951. The total area of these two plots is 1069 acre or about 7 cottahs.

(2.) THE defendant contested the suit, contending that the suit for ejectment was not maintainable as the defendant had been in possession for more than 12 years and had built substantial pucca structures on the suit land with the knowledge and consent of the plaintiff. In respect of c. s. plot no. 793, the plot is recorded in the finally published c. s khatian as in the possession of one Dukhan Shaw as dakahalkar. The defendant's case was that Dukhan Shaw sold the plot in 1932 to the defendant's father by executing a kobala and thereafter the landlords granted a lease to the defendant's father by executing a patta on 20th June, 1932 by which a lease for the term of ten years was granted and the defendant's father was permitted to build a pucca structure for setting up a petrol service station. It should be mentioned that mouza Satigachi is situated near Dum Dum on the Jessore Road. According to the defendant c. s. plot on. 787 is recorded in the c. s. khatian as in the possession of one Ramkishan Shaw as Dakhalkar and the defendant's father purchased that plot from Ramkishan Shaw by a kobala dated 2nd May, 1934. There alter on 30th January, 1939 the plaintiffs landlords granted a lease to the defendant in respect of both c. s. plot no. 793 and c. s. plot no. 787, defendant's father being dead in the meantime. This was a bilateral registered lease deed and the term was ten years. But according to the defendant he had been in possession of c. s. plot no. 793 since 1932 and of c. s. plot no. 787 from 1934 and he had completed 12 years of possession and he had also been permitted to build the pucca structures on the land and that therefore he could not be ejected. In the trial court the defendant sought to argue that the tenancy was governed by the Bengal Tenancy Act. The learned Munsif found against the defendant on that point and held that the tenancy was governed by the West Bengal Non-Agricultural Tenancy Act. 1949. It is now not challenged that the tenancy would be governed by the Non-Agricultural Tenancy Act. In view of the fact that pucca structures had been allowed to be built on the land and the case would be governed by the West Bengal Non-Agricultural Tenancy Act, the learned Munsif held that under the provisions of sec. 7 (5) of the Act the defendant was entitled to remain on the land and that the plaintiff could not therefore obtain a decree for ejectment. The ejectment suit was therefore dismissed by the learned Munsif.

(3.) THERE was an appeal by the plaintiffs which was heard by Shri B. K. Panda, Subordinate Judge, Alipore. The learned Subordinate Judge held in respect of c. s. plot no. 787 that the defendant's contention that his father had purchased the plot from Ramkishan Shaw by a kobala on 2nd May, 1934 was not correct, because the relevant kobala Ext. D. showed only a purchase of kutcha structures standing on the land and not the purchase of the tenant's interest in the land. The learned Subordinate Judge, therefore, held that c. s. plot no. 787 was first let out by the bi-lateral registered lease deed for the term of 10 years executed on 30th January, 1939, namely, Ext. 1. and that therefore on the expiry of the term of the lease the plaintiffs were entitled to recover possession thereof. The learned Subordinate Judge found that no pucca structure existed on c. s. plot no. 787.