RASIK LAL SEN Vs. KRISHNA MOHAN MANDAL TIKADAR

JUDGEMENT

(1.) This second appeal arises out of a suit for recovery of two plots of land. The plot No. 1 was decreed in both Courts, and with that we have nothing to do. The title in plot No. 2 was declared to be in the plaintiff but his prayer for khas possession was rejected. The plaintiff appeals with regard to this point only and pleads that he is entitled to get khas possession from a person who was an under-raiyat on the land without notice. The lower Appellate Court has found that he was bound to treat him as an under-tenant and to give notice.

(2.) It appears that one Debendra Nath Roy was the proprietor of the estate; under him was the tenure-holder, named, Chandra Kumar Sen, and under him again was an under-tenure- holder, a lady of the name of Sarat Sundari Guptan. The occupancy-tenant was the defendant No. 1 in this case and there were two under-raiyats, defendants Nos. 2 and 3, who took a registered lease in 1894, from defendant No. 1. That lease had, under the terms of the tenancy, of course, expired, but the defendants Nos. 2 and 3 were admittedly in possession and were holding on and must be presumed to be holding under the same conditions. Now the proprietor sold up the tenure of Chandra Kumar Sen and bought it himself and settled it with the plaintiff. The plaintiff took steps under Section 167 to avoid the under tenure of Sarat Sundari, and in the meantime Sarat Sundari had acquired the occupancy-holding of defendant No. 1. That being the position, the case seems to be on all fours with the case of Amirullah Mahomed v. Nazir Mahomad 31 C. 932. An under-tenant who is not an occupancy-raiyat cannot be ejected by the landlord without the notice prescribed by Section 49(b). The only distinction which is sought to be made or can possibly be made between the two cases is that a tenure-holder has intervened between the landlord and the under-tenant; but this really is no distinction at all. The meaning of the word landlord is a person who, on the extinction of other rights, comes into direct relation with the tenant or under-tenant as the case may be.

(3.) We think that the view taken by the lower Court is correct and the appeal must be dismissed with costs.