SARBESWAR PATRA Vs. MAHARAJA SIR BIJOY CHAND MAHATAP

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment of the learned Subordinate Judge of Bankura.

(2.) The suit was brought for a declaration of the plaintiff's jote title in certain land, for recovery of possession thereof and for Rs. 15 as the price of paddy alleged to have been wrongfully taken by the defendant No. 1. The learned Judge stated the respective cases as follows: The plaintiff's case id that in Mouzah Chuamasina he held 11 bighas of land with occupancy rights at a jama of Rs. 5. This jama was held formerly by him under the malik, Hriday Nath Sarkar; after his death under his son, Asutosh Sarcar, and then under Ashu's vendee, Haridas Chaudhury. Out of these 11 bighas, 5 bighas form the subject of the suit, The plaintiff alleges that he was in possession of the disputed land through his bhag chasi, defendant No. 2, and got his share of naon paddy of 1 bigha in 1323 and that his share of the heot paddy grown on the remaining 4 bighas was stocked in the house of defendant No. 2, but defendant No. 1 forcibly took it away on the allegation that the lands had been made khas by defendant No. 3, the Maharaja of Burdwan, by purchasing the same in execution of a decree for arrears of rent against the maliks end had been settled with him. The substantial defense of the defendants Nos. 1 and 3 is that the interest of Asutosh Sircar and Haridas Chaudhury in the lands was that of occupancy raiyats which was purchased by defendant No. 3 on 2 November, 1914 in a rent sale, that a notice under section 167 having been given to the plaintiff, among other persons, on 7 May 1915, he became entitled to khas possession and that be has accordingly taken the paddy from defendant No. 2. The lower Court" (i.e., the first Court; "decreed the suit on the finding, that the status of the plaintiff's landlord was that of a tenure-holder and that the plaintiff is a raiyat with rights of occupancy which being a protected interest under Section 260, Bengal Tenancy Act, his right was not annulled by service of notice under Section 167.

(3.) The first question, with whish the lower Appellate Court dealt, was the status of the plaintiff's landlord. The lower Appellate Court agreed with the Court of first instance that Hriday Siraar was a tenure-holder, and that his right of an occupancy raiyat, as alleged by the defendant, had not been proved.