ESAHAQUE MIAH Vs. DULAH MIAH PATWARI

JUDGEMENT

(1.) This is an appeal by defendants 1 and 6 from a decision of the First Additional Subordinate Judge of Noakhali, confirming a decision of the Munsiff, Second Court, of Lakhipur and arises out of a suit brought by the plaintiff, now respondent, for a declaration of his raiyati right to certain lands included in Khatian No. 471 of Chur Mohana and for khas possession of the same after service of notice under Section 49, Ben. Ten. Act. Under that raiyati there was an osat- raiyati, or under-raiyati, in the name of Fazler Rahaman the predecessor of the defendants at an annual rental of Rs. 41-4. The plaintiff's ease was that he had determined the said under- raiyati by a notice to quit served upon Fazler Rahaman on 30 April 1921. Fazler Rahaman died in Bhadra 1329 B. S. (1922). According to the plaintiff the osat-raiyati right is not heritable, no occupancy right can be acquired therein and the defendants have no interest in the land. Neither Fazler Rahaman nor his heirs were at any time recognized as tenants after service of notice. The plaintiff accordingly, sued for rent which had accrued previous to the death of Fazler Rahaman, and he also claimed rent for a subsequent period from the defendants.

(2.) The main defence set up by the defendants was that they had a permanent right in the holding and were not liable to ejectment. They claimed that the original patta of 1304 B. S. conferred a permanent right upon their predecessor Fazler Rahaman, and further that at a later date they acquired a permanent right by virtue of a compromise decree in a suit between the parties. The trial Court decreed the suit, and that decree was confirmed by the Subordinate Judge on appeal. The learned Munsif relied upon a decision in the case of Surjug Sharan V/s. Dukhit [1913]18 I.C. 809 and held that the decree in question being contrary to statute must be held to have been made without jurisdiction and that no reliance can be placed upon the terms of the solenama or the decree. The Court of appeal below adopted the same view and hold that the decree and the solenama could not be given effect to. The learned Subordinate Judge further held that Ex. 3 which was a decree in a previous suit between the parties operated as res judicata and was fatal to the defence set up by the defendants. The appeal was accordingly dismissed. Defendants 1 and 6 have now preferred this second appeal and the contentions which have been urged before us are that the Court of appeal below erred in law in its decision upon both the points of law to which reference has been made above. It is contended that upon a proper construction and interpretation of the solenama Ex. C and the decree Ex. B the Court below should have held that the defendants acquired a kaimi or permanent interest in the land, and that the plaintiff is not therefore entitled to a decree for khas possession. It has also been argued that the patta, Ex. A, granted by the plaintiff's predecessor conferred a heritable and permanent right. On behalf of the respondent on the other hand it has been contended that the provisions of the solenama are not to be found in the decree, and further that looking to the terms of the solenama itself there is nothing in this document and the use of the word kaimi which in any way supports the claim to a permanent right.

(3.) With regard to the first point it appears to me that the Courts below have erred in following the decision in 17 Calcutta Weekly Notes, to which reference has already been made. That decision has subsequently been dissented from in the cases of Ishan Chandra Banikya v. Moom-raj Khan A.I.R. 1926 Cal. 1101 and Mahomed Hossain Choudhary V/s. Khana, Kazi . To the first of these decisions I was a party with my learned brother B. B. Ghose, J., while in the second case my learned brother Mitter, J. was a party. In those cases it was held that in view of the subsequent decisions [Hriday Nath Roy V/s. Ramchandra Barna Sarma, A.I. B. 1921 Cal. 34 (F.B.) and Gora Chand Haldar V/s. Prafulla Kumar Roy of the Pull Bench of this Court the view of the law taken in the case of Sarjug Sharan V/s. Dukhit [1913]18 I.C. 809 can no longer be sustained. Speaking for myself I see no reason to alter the view which I then expressed, and in my opinion, if this decree granted a permanent right, it cannot now be held to be a nullity as having been made without jurisdiction. So far as the patta Ex. A is concerned it is no doubt of little assistance to the appellants. The right is described therein as sanba sani osat jotedari" right. The word kaimi is not used in this instance and the only indication of permanency is towards the end of the document where it uses the words: Properties owned by you and your heirs ac-cording to the law in force at the time.