DIGAMBAR DAS Vs. BEPIN BEHARI RAI

JUDGEMENT

(1.) This appeal is on behalf of the plaintiffs and arises out of a suit in ejectment. The plaintiffs case is that they have got a raiyati interest in the lands in dispute; that the father of Radha Nath Sardar held it as an under . raiyat under the plaintiffs and that he, Radha Nath, died in Aswin 1326 B.S. It is also said that the huts which were on the land fell down in the cyclone in the year 1326 B.S. and that as the under-raiyati interest of Radha Nath is not heritable under the law, defendant 8 has no right to retain possession of the same. The plaintiffs have therefore acquired right to enter into possession. The plaintiffs went to take possession of the land in Baisak 1330 B.S. when they were resisted not only by defendant 8 but also by defendants 1 to 7. Hence the present suit. Defendants 1, 2 and 8 filed separate written statements, that is, defendants 1 and 2 filed one written statement and defendant 8 filed another. The defence of defendant 8 is substantially this: that the land in dispute formed the homestead of Radha Nath and that as Radha Nath is a raiyat of village Sarai where the lands in dispute are situate with respect to other lands he has acquired the right to resist eviction having regard to the provisions of Section 182, Ben, Ten. Act. It is further said that having regard to the terms of the lease by which this tenancy was created defendant 8 certainly had a heritable interest in the disputed land, and consequently the suit must fail. Defendants 1 and 2 by their separate written defence raised the same contention. The Munsif accepted the defendants defence so far as it was based under the provisions of Section 182, Ben. Ten. Act. He also accepted the other defences that under the terms of the instrument under which the tenancy is held it was heritable. In this view the Munsif dismissed the plaintiffs suit.

(2.) Against this decision an appeal was taken to the Court of the District Judge of Khulna. The learned District Judge agreed with the Munsif on the question that the tenancy was heritable and that it was governed by the provisions of the Transfer of Property Act, but disagreed with the Munsif on the question, namely, that the defendant was not entitled to fall back on the provisions of Section 182, Ben. Ten. Act, seeing that on the evidence the District Judge was not satisfied that defendant 8 held some other lands in village Sarai as a raiyat or, in other words, that it was not established to his satisfaction that Radha Nath was a settled raiyat of the village with reference to the other lands in the village Sarai.

(3.) Against the decision of the District Judge affirming that of the Munsif the present appeal has been brought and it has been contended by Dr. Mukherjee who appears for the appellant that from the terms of the kabuliyat, it would appear that the lease was given to Radha Nath and in the absence of any term in the instrument it must be regarded that it enured during the lifetime of Radha Nath and that with the death of Radha-Nath the kabuliyat spent its force. Consequently the plaintiff was entitled to recover possession. The terms of the lease are set forth in substance in the judgment of the learned District Judge at p. 10 of the paper book. Therefrom it will appear that the lease was given for residential purposes. That being so it appears on the authorities which have been relied on by the District Judge and which have also been cited by Mr. Brojo Lal Chakrabarty for the respondent before me that in the absence of an intention to the contrary the lease-hold interest must be regarded as heritable. Reference may be made in this connexion to the decision in the cases of Kisorilal Roy v. Kishna Kamini [1910] 37 Cal. 377 and Harilal Singha V/s. Bupa Manjari Barman [1913] 15 I.C.137. These cases which have been placed before me undoubtedly support the contention of the respondents and also support the view taken by the learned District Judge in this behalf.. The appeal therefore should fail on this ground. It has been argued for the respondent that this Court should not rest its decision on the other finding which has been arrived at by the District Judge with reference to the applicability of EL 182, Ben. Ten. Act. I am unable to agree with this contention. The learned District Judge has analyzed the evidence and he has come to the conclusion on the findings that he is not satisfied that Radha Nath or his successor held as a raiyat under the Malik Nur Mahmud. He has considered the evidence of the plaintiff and also the evidence of D. W. 6 and has come to the conclusion on the question of fact as to whether the raiyati interest of Radhanath under Nur Mahmud has been established or not. He has found that all that appears from the evidence is that Radha Nath had a karsa right in the land and the witness who speaks about the karsa right meant a right held under a kaimi right. The dakhilas are also not conclusive on this question. In. these circumstances I think that the decision cannot be rested only on the ground that the interest of Radha Nath was heritable.