JOGESH CHANDRA ROY Vs. MAKBUL ALI

JUDGEMENT

(1.) An estate, now vested in the plaintiff, the appellant before UP, was originally held in two undivided moieties. The owner of one moiety granted a tenure thereof in favour of two persons, Fatch Ali Miji and Asauddin Miji, evidenced by a Kbuliyat which they executed, dated the 1st Chaitra, 1271 (1865). In this document the tenure is referred to as an itmam. The other majority was also held by the same two persons as a tenure, described as a Taluk. It may be conceded to the plaintiff, as his case is, that the taluk was created orally at the same time as the itmam, though there is really no evidence how the taluk same into existence.

(2.) In 1878, after the death of Fatch Ali and Asauddin, the widow and grandson of the former and the widow and daughter of the latter conveyed the two tenures to Haidar Ali, the predecessor in interest of the defendants.

(3.) The Suit was brought en the basis that the terms and conditions of the itmem, as they appear in the kabuliyat of 1865, are inconsistent with the permanent tenure which the defendants claim. As to the taluk, the plaintiff s theory, rather a weak one, if, that it mast be presumed to have been granted on the same terms as the itmam. There is more force in the argument for the defendants that the taluk, prima facie, a permanent tenure, and that if there is any doubt as to the permanency of the itmam, it must be resolved in their favour. The plaintiff, acting on his view of his rights, treated both tenures as tenancies from year to year and served notice to quit on the defendants. They refused to quit and the present suit was brought to eject them. The appeal is from the decree of the Subordinate Judge dismissing the suit.