SHEIKH MOZAFFAR ALI Vs. DAROGHA GOPE

JUDGEMENT

(1.) The substantial point for our determination in this appeal is whether, on the facts of the case, the proposition laid down in Sujjad Ahamed Chowdhury V/s. Ganga Charan Ghose 9 C.W.N. 460 : 1 C.L.J. 116 is or is not applicable.

(2.) The plaintiffs appellants alleged that the principal defendant, whom they sought to eject from the land in suit, was their bataidar for three years, in or about the year 1900 but that the defendant having given up the land which had been settled with him in darjote, the plaintiffs came into possession. The plaintiff further stated that, in spite of this, the principal defendant secured an order, under Section 107, Criminal Procedure Code, in the year 1906, declaring his possession as darjotedar. The defendant raised another sort of defence, but he admitted some intermediary title of the plaintiffs in that he said that he paid rent (Rs. 15) to the zamindars through plaintiff No. 1. His story that the jote had been held furzi (benami) by the plaintiff No. 1, though it really belonged to the defendant's father, has been disbelieved by both the Courts.

(3.) In this state of the pleadings, and on the judgment of the first Court, it was argued in the lower appellate Court that the defendant had been holding as an under-raiyat under the plaintiff for at least 9 years. The Subordinate Judge went into this question, and has found it established, by the evidence on the record, that the defendant had been holding the entire disputed land, under the plaintiffs, as an under-raiyat, since at least 8 or 9 years, and, as such, is in continuous possession of the same by paying rent to the plaintiffs either in money or in kind. In that view, he held that the plaintiffs could not get khas possession of the disputed land without determining the sub-tenancy of defendant No. 1, as under-raiyat, by service of notice to quit as required by law.