GIRJA KUER Vs. GHAFOOR MIAN

JUDGEMENT

(1.) The question to be determined in this appeal is as to whether the plaintiffs are entitled to a decree for eviction of defendants 1 and 2 from 9 kathas, 3 dhurs of Plot No. 268, Khata No. 15 of Village Misrawalia.

(2.) The plaintiffs brought the suit alleging that he and defendant No. 11 were kashtkars of the laud, that defendants 3 to 10 had taken shikmi settlement of 1 bigha, 3 katha, 14 dhurs on payment of annual rent, that by a sale-deed, dated 3rd June 1943, defendants 3 to 10 had transferred a portion of the shikmi holding viz., 9 katha and 3 dhurs of Plot No. 268 to defendants 1 and 2. The plaintiffs asserted that the shikmidars had no right to transfer the land to defendants 1 and 2, that there was no custom of transferability of shikmi holding in the village, that defendants 1 and 2 were mere trespassers and the plaintiffs were entitled to re-enter upon the portion of the land transferred to them. Defendants 1 and 2 contested the suit alleging that there was custom of transferability of shikmi holding, that they had built pucca house on the disputed land to the knowledge of the plaintiffs who were therefore estopped "from asking for ejectment. It was stated that the defendants 1 and 2 were purchasers of only a portion of the shikmi holding and in consequence the plaintiffs ought not to be granted a decree for ejectment. Upon the examination of the evidence the learned Munsiff held (1) that the custom of transferability was not established, (2) that the house was built by defendants 1 and 2 after the institution of the suit and so the plaintiffs were not estopped from claiming a decree for ejectment and (3) that defendants 3 to 10 being shikmidars had no right to transfer the disputed land to defendants 1 and 2. The learned Munsiff granted a decree for ejectment in favour of the plaintiffs. In appeal the decision of the learned Munsiff has been reversed by the Subordinate Judge of Chapra, who held that the plaintiffs had no right to re-enter since the transfer was with respect to only a part of the shikmi holding and the suit of the plaintiffs ought to be dismissed.

(3.) In support of this appeal Mr. A.B.N. Sinha maintained that the learned Subordinate Judge was erroneous to hold that the principle in 'Dayamoyi v. Ananda Mohan', 42 Cal 172 (PB) was applicable to the material facts found in the present case. Learned Counsel pointed out that Section 87 of the Bihar Tenancy Act was not applicable to shikmi raiyats and since no question of abandonment can arise with respect to a shikmi raiyat the principle of 'Dayamoyi's case', cited supra, cannot be relevant. In my opinion, the argument advanced by the learned Counsel is untenable and cannot succeed. It is of importance to notice at the outset that the newly enacted Section 48-B of the Bihar Tenancy Act expressly states that