SURENDRA KUMAR SEN CHAUDHURY Vs. CHANDRATARA NATH

JUDGEMENT

(1.) This is an appeal by defendant 2 from a decision of the Additional District Judge of Tipperah confirming a decision of the Munsif, Third Court of Comilla, and arises out of a suit brought by the plaintiff, now respondent for a declaration of his raiyati right to a tank with its banks.

(2.) The plaintiff's case was that the tank in question belonged to one Ramkanai Dutt, the father (now deceased) of defendant 1, who executed a lease on 7 July 1913 for a period of ten years covering the years 1320-29 B. S. in favour of Abhoy Charan Nath. Abhoy Charan died in 1922 leaving as his heirs his widow, the present plaintiff 1, and two brothers, plaintiffs 2 and 3. On the expiry of the said lease defendant 1 granted an ejara patta to the present appellant (defendant 2) for a period of 16 years, 1322 to 1347 B. S. Thereafter the tank became the subject matter of proceedings between the parties under Section 145, Criminal P. C with the result that on 8 March 1926 the possession of defendant 2 was confirmed by the criminal Court. The plaintiff thereupon instituted this suit on 10 September 1926. They alleged inter alia that defendant 1 who used to live in Rangoon, returned home after the death of his father Ram Kanai in order to perform the Sradh ceremony, and that he then entered into an agreement with the plaintiffs whereby he undertook to execute a patta in plaintiff's favour on receipt of Rs. 100 as najar, the rental of the holding being increased to Rs. 12 per year. No patta or kabuliyat was however executed as defendant 1 had to return to Burma. Plaintiffs claimed that they had occupancy rights in the tank, and that by virtue of the fresh agreement they were entitled to renewal of the lease and to get a patta from defendant 1. They further stated that defendant 1 returned again from Burma at a later date but that in spite of repeated demands he put off execution of the patta with the result that proceedings arose under Section 145, Criminal P.C. In the course of those proceedings it transpired that defendant 1 had executed an ijara lease in favour of defendant 2 and defendant 2 as already stated, was declared to be in possession. The plaintiffs were therefore compelled to bring this suit. They contended that they were entitled to a declaration of their raiyati right and in the alternative to obtain execution of the lease.

(3.) The suit was contested by defendant 2 who claimed that he had been given an ijara of the land in suit by defendant 1 after the expiry of the plaintiff's lease and to have purchased the same for consideration without knowledge of the contract set up by the plaintiffs. He further pleaded that the plaintiffs lease was not an agricultural lease, that the plaintiffs could not acquire any occupancy right in the tank and its banks, and that no fresh lease had been executed as alleged.