SRIMATI KHYANTA KALI DASI Vs. KEDAR NATH KAJI

JUDGEMENT

(1.) The judgment of the lower appellate Court in this case is not as satisfactory or full as it ought to have been. In the first place while writing the judgment, the learned Subordinate Judge used the word plaintiff when he meant the defendant No. 1. This, however, has been treated as a clerical error and corrected as such. It has not been argued on the basis of this mistake that the learned Subordinate Judge was writing his judgment upon some other case and not upon the case before him as the facts of this case do not coincide with the statements of facts in the judgment. The case has, however, been argued on the basis of its being a clerical mistake only and in that view of the case it is to be seen whether there are any grounds for this second appeal.

(2.) The defendant No. 1 created a mourasi lease in favour of one Braja Mohan. Braja Mohan created a der-mourasi in favour of the plaintiffs. In execution of a decree for arrears of rent the defendant No. 1 brought to sale the mourasi tenure of Braja Mohan and herself purchased the same in October 1898. The sale was confirmed in November 1899. It is in July 1900 that she had a notice under Section 167 of the Bengal Tenancy Act served upon two of the three der-mourasidars. Finding, however, that one of the der-mourasidars had been left out she made a second application on the 23 of August 1901 under Section 167 of the Bengal Tenancy Act. In consequence of these proceedings the der-mourasidars were dispossessed by the defendant No. 1 and the new tenants with whom she is supposed to have settled this land. The plaintiffs, therefore, brought this suit for the recovery of their land on the basis of their der-mourasi title granted by Braja Mohan. The plea of the defendant No. 1 was that she had in due course annulled the incumbrance of the der-mourasi tenure under the Bengal Tenancy Act and the plaintiffs were not entitled to a decree.

(3.) The first Court found that the evidence of the service of these notices was not reliable, that the first notice was defective by reason of its not having been directed to the plaintiff No. 7 and that the second notice was out of time on all considerations.