(1.) This appeal arises out of a suit which was brought in the first Court of the Munsif at Moulvibazar by the plaintiff s, Bama Sundari Dam, the widow of one Tara Nath Dam, and Rajendra Nath Dam, the adopted son of Tara Nath Dam against Prokash Chandra Das and Gopi Charan Das who were the sons of one Gour Earn Das. The suit was instituted on 9 April 1925 and shortly afterwards and before the suit was heard, the female plaintiff died and an order was in consequence made declaring that as against her the suit had abated. The case was however proceeded with by Rajendra Nath Dam plaintiff 2, and he ultimately was successful against the defendants.
(2.) The suit was brought to eject the defendants from certain lands (which for the purpose of deciding this appeal it is not necessary to specify with any particularity) upon the basis that the lands were held by the defendants on a service tenure and the defendants had ever since 8 October 1913 persistently refused or at any rate withheld performance of the services due from them in respect of the lands so held. It is to be observed that the suit was brought only just within the limitation period of twelve years from the time when according to the plaintiff's case: the cause of action had first arisen. The answer made by the defendants that is to say, the substantial defence put forward by them was that the lands in question were not held as service or chakran lands or by any similar kind of tenure,, but were in fact held by them on a rent-paying basis and that they had in fact from time to time paid rent for the lands to the plaintiffs or to their predecessors-in-title. It appears that it was clearly established that the lands which were the subject-matter of the suit had undoubtedly been held by the defendants and their predecessors from the plaintiffs and their predecessors-in-title for a very considerable period of time. In the circumstances of the case it was obviously difficult, if not impossible, accurately to discover or even surmise what were the precise terms of the tenure at its inception. Before I come to deal with the main points of law that have been raised in this appeal I will first of all dispose of a subsidiary point which has been argued before us, namely, that the plaintiff Rajendra Nath was not competent to carry on these proceedings after the decease of his co-plaintiff Bama Sundari. It appears however that what the learned Munsif found as regards this point, as did the learned Officiating Subordinate Judge before whom the matter came on appeal, was that Rajendra Nath had been taken in adoption by the senior widow of Tara Nath Dam (the husband of Bama Sundari), a lady named Umatara and in consequence both the Courts below were of opinion on the evidence adduced before them that the circumstances were such that Rajendra had acquired all such right, title and interests with regard to this subject matter of the suit as had been possessed by Taranath's other widow Bama Sundari the female plaintiff in this suit. Mr. Boy on behalf of the defendants-appellants did. not seriously press the point with regard to the competency of the proceedings subsequent to the death of Bama Sundari and therefore nothing more need be said with regard to that. We have only to concern ourselves with the merits of the case.
(3.) The learned Munsif made a decree in. favour of the surviving plaintiff Rajendra Nath and gave him khas possession of the. lands in dispute and ordered that as the defendant's right to hold those lands as chakran lands had determined they should remove certain ghars which were standing on one of the plots, and that in default those ghars should be removed at the cost of the defendants in execution proceedings. Against that decision the defendants appealed to the lower appellate Court and the learned Officiating Subordinate Judge of Sylhet confirmed the decree of the Court of first instance with a slight modification as regards the order for the removal of the ghars on plot 14.