BROJO GOPAL GOSSAIN HAVING DIED IN HIS PLACE HIS WIFE AND HEIRESS MONHINI DEVI ALIAS GOPALI SUNDARI DEVI Vs. RAJANI KANTA GHOSE

JUDGEMENT

(1.) THIS appeal arises out of a suit in ejectment which was decreed by the Munsif of Manikgunj and dismissed on appeal by the Additional District Judge of Dacca. It is found by both the Courts below that the defendant is a purchaser of an occupancy holding which is non- transferable by custom and that his transfer has not been in fact recognised by the landlord. The plaintiff is the proprietor of a temporarily settled estate. She has been holding this estate since 1871 with renewals of agreement at different periods. The second term of her settlement expired in 1915; but on the 12th June 1913 the plaintiff executed a kabuliyut for a term of 15 years from 1915. In that Kabuliyat there was a clause in the following terms: "I agree to recognise recorded rights of tenants, Sub-tenants, Mandals and others within the mahal" In the Rent Roll the holding that forms the subject of this dispute was recorded in the following entry: "Jote Genda Dewan and others; possessor Rajani Kant Ghose." Rajani Kanta Ghose is the principal defendant. The lower Appellate Court has four d that, in consequence of this Bond it ion in the kabuliyat and this entry in the Rent Roll, the plaintiff is bound to recognise Rajani Kant Ghose as a tenant. Had this defendant been recorded as a tenant, there is ample authority for holding that the plaintiff after executing the kabuliyat could not deny the tenancy. See the cases of Tapanidhi Raghunath Puri v. Pitambar Gajendra Mohapaty 5 C.L.J. 67, Chandramoni Mohanti v. Manmotha Nath 5 Ind. Cas. 301 : 11 C.L.J. 68, and Jarip Sardar v. Jogendra Nath Chatterjee 54 Ind. Cas. 719 : 31 C.L.J. 78 : 24 C.W.N. 53, But I am unable to agree with the learned Additional District Judge that the entry in the Rent Roll recorded that the defendant had the right of a tenant so as to make the clause of the kabuliyat quoted above applicable. The entry was that Rajani Kanta Ghose was in possession of the holding; but it is not recorded that he is a tenant nor is it recorded that be had any right to remain in possession. Such being the case, the plaintiff is in no way barred from bringing this suit in ejectment; and on the finding of both the Courts that the defendant is only in possession as purchaser of a nontransferable occupancy holding, he cannot resist the plaintiff s suit in ejectment.

(2.) THE result is that this appeal is allowed the decree of the lower Appellate Courts to set aside and that of the Munsif restored with costs both here and in the lower Appellate Court.