PRIANATH NAIK Vs. PROMATHA NATH ADHIKARI

JUDGEMENT

(1.) The plaintiff is the appellant. The suit was one for ejectment of defendants Nos. 1 and 2 from certain land in the Municipality of Tamluk. The defendants purchased the land in execution of a money decree against the original tenant. The plaintiff is one of four brothers Rajani, Rakbal, Madhub and himself. Rakhal is defendant No. 4 and the plaintiff has now acquired the interest of Rajani and Madhub, so that be is the landlord in respect of 12 annas and Rakhal of 4 annas. The first Court dismissed the suit on the ground that the defendants were entitled to notice and the suit was defective, the notice not having been given by all the landlords. The notice in question was a 15 days notice. The Appellate Court also took the view that the plaintiff could not succeed as all the landlords had not jointed in the notice. It appears that in a previous Suit No. 1236 of 1913 an attempt had been made by all the brothers to eject the defendants Nos. 1 and 2 from the land. That suit ended in Rakhal compromising the matter with the defendants, whereupon the present plaintiff and his other brothers withdrew from the suit with permission to bring a fresh suit. The present suit was subsequently filed and it has been disposed of in the manner which I have stated.

(2.) The appellant contends that the defendants are trespassers and, therefore, he is entitled to re-enter. It is obvious that it is necessary for his success to prove that they are trespassers and he claims to have done so on any one of three grounds, (1) that the interest of the previous tenant was not transferable, (2) that the tenancy was terminated by the notice given in the previous suit of 1913, or (3) that it was terminated by the notice in the present suit.

(3.) As regards the first point, namely, that the original tenant s interest was not transferable, it is the common case of both parties that the tenancy is governed by the Transfer of Property Act. Therefore, whatever the character and value of the tenancy may have been, it was transferable. Therefore, it cannot be said that the defendants Nos. 1 and 2 were trespassers on the ground that they purchased a non transferable interest.