AKHJU SINGH Vs. RAJ KUMAR JAGANNATH PRASAD SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the first defendant in an action in ejectment. The plaintiff- respondent commenced this suit on the ground that the laid in the occupation of the appellant was zerait and that the defendant had no right to continue in occupation thereof after the expiry of the term of a lease granted to him on the 13th May, 1902. The defendant resisted the claim on the ground that the land was not zerait, that it constituted an occupancy holding and that he was not liable to be evicted. The Court of first instance dismissed the suit. Upon appeal, the District Judge has decreed the claim. On behalf of the defendant, this decision has been assail ed substantially on three grounds, namely, first that the conclusion that the land in zerait is based upon evidence which is not admissible in law; secondly, that the Judge has not considered whether the defendant was protected from ejectment under Section 116 of the Bengal Tenancy Act, even if it was conceded that the case fell within Section 1?0 of the Bengal Tenancy Act, and, thirdly, that the Judge ought not to have held that if the land was not zerait, the defendant was liable to be ejected under Clause (c) of Section 44 of the Bengal Tenancy Act.

(2.) In so far as the last ground is concerned, it is, in our opinion, clearly well founded. Section 44 provides in Clause (c) that a non-occupancy raiyat shall be liable to ejectment where he has been admitted to occupation of the land under a registered lease, on the, ground that the term of the lease has expired. If it is assumed for a moment that the land is not zerait and that the defendant was an occupancy raiyat who was let into occupation on the 13th May 1902, it, follows that under Section 44, he would be liable to be ejected after the expiry of the lease on the 13th May 1905. But Section 45 provides that a suit for ejectment on the ground of expiration of the term of a lease shall not be instituted against a non-occupancy raiyat unless notice to quit has been served on the raiyat not less than six months before the expiration of the term of the lease and shall not be instituted after six months from the expiration of the term. This Section was repealed by Section 2 of Act I of 1907 (B.C.); but it was in force when the term of the lease of the 13th May 1902 expired in 1905. The liability of the defendant to be ejected under Clause (c) of Section 44 accrued at that time. It is not suggested that the landlord has complied with the requirements of Section 45, that is, that he has served notice on the raiyat not less than six months before the expiration of the term. Nor has he instituted a suit for ejectment within six months from the expiration of the term. The right of the landlord, therefore, to eject the defendant as a non-occupancy raiyat under Clause (c) of Section 44 read with Section 45, has never become enforceable. The subsequent repeal of Section 45 in 1907 cannot clearly revive the right of the landlord. We must take it, therefore, that if the land is not zerait and if the possession of the defendant is that of a non- occupancy raiyat under the lease of the 13th May 1902, he is not liable to be ejected.

(3.) It is now necessary to consider the first two grounds urged in support of the appeal. The learned District Judge has held that under Sections 120 and 103(B) of the Bengal Tenancy Act, there is a presumption in favour of the tenant that the land in suit is not zerait. But he has also held that the landlord has sufficiently rebutted that presumption by the oral testimony of witnesses who support the case by the certified copy of a former deposition of the defendant dated the 1st July 1904 in which he admitted that on his application he had obtained the zerait land from the Manager, and by the evidence of the kabulyat itself the execution of which was not denied by the defendant. With reference to this analysis of the evidence on the record, it has been argued by the learned Vakil for the appellant that the evidence which is made the foundation of the judgment of the District Judge is irrelevant. He has contended, first, that under Section 120 of the Bengal Tenancy Act an admission by the defendant in his previous deposition recorded on the 1st July 1904 is not admissible under Sub-section (2) of Section 120; secondly, that the mere assertion of a witness that the land is zerait is not admissible; and thirdly, that the mere execution of a kabulyat in 1902 is no evidence that the land was zerait. In support of these propositions, the learned Vakil for the appellant has placed reliance upon the case of Nilmoney Chuckerbutti v. Baikant Nath Bera 17 C. 466 and has suggested that the contrary view taken in the case of Bhagtu Singh v. Raghu Nath Sahai 13 C.W.N. 135 : 9 C.L.J. 15 : 1 Ind. Cas. 571 does not give effect to the true intention of the Legislature. In order to determine the validity of this contention it is necessary to consider the terms of Section 120 of the Bengal Tenancy Act.