BIBI JALGOSAN Vs. BHULAI BAITHA

JUDGEMENT

(1.) The substantial question of law, formulated in this second appeal at the instance of the plaintiff against the judgment of reversal, is a short one, namely whether an under tenant even after remaining in possession for more than 12 years can lawfully transfer his under tenancy right.

(2.) Short facts, relevant for the disposal of this appeal, which are more or less undisputed, are these. Plot Nos. 5922 and 5923 having an area of 0-09 and 0-08 acres respectively lying in mauza Rampur Mohanpur, Araria, in the district of Purnea, were recorded as raiyati lands of one Mushahru father of defendants 8 and 9, Sk. Khalil and Sk. Jamil, respectively. Defendants Nos. 8 and 9 sold the raiyati interest in these plots obviously on the death of their father, Mushahru, to the plaintiff under a registered sale deed dated the 4th July 1962. One Jitni, widow of of Buni Baitha was recorded in the revisional survey recorded of rights as sikmidar in respect of these two plots. Sk. Khalil and Phulai Baitha (defendants 6 and 7) respectively claimed to have purchased the under-raiyati interest of these two plots from the recorded tenant Jitni on the assertion that Jitni, by being in possession over the said land for more than 12 years, he acquired right of occupancy over the same. Some criminal litigation preceded the instant suit and ultimately the plaintiff instituted this suit for declaration of her title, confirmation of possession with a further prayer for grant of injunction.

(3.) The defendants first party are the grand sons of one Nabir, who was said to be the benamidar of Sk, Musharu. Defendants first party did not, however, contest the suit and the question of benamidar is thus irrelevant. The suit was contested only by defendants No. 7 and by some intervenor defendants challenging the claim put forward by the plaintiff in toto.