GOPAL CHANDRA PODDAR Vs. DWARIKA NATH DUTTA

JUDGEMENT

(1.) The superior landlord granted certain lands to the defendant No. 1 partly as a patni and partly as a dar patni tenure. A portion of these lands was held by the defendant No. 4, the appellant before us, as an occupancy raiyat. The patni tenure was sold under Regulation VIII of 1819, for arrears of rent and the superior landlord having purchased it at the sale granted it to the plaintiffs. One-fourth of the dar patni tenure was also sold for arrears of rent, and this fractional share of the dar patni was also purchased by the superior landlord and granted to the plaintiffs.

(2.) The plaintiffs brought this suit claiming Khas possession of the land held by defendant No. 4 on the ground that, under the relevant statutory provisions, the landlord had purchased the land free from incumbrances. Both the Courts below have held that the defendant No. 4 not being a khud-khast raiyat or a resident and hereditary cultivator within the meaning of clause third of Section 11 of Regulation VIII of 1819, his interest is an incumbrance under that Regulation so far as the patni tenure is concerned. As regards the dar patni tenure only, a portion of which was sold, the lower Appellate Court has held that the plaintiffs are not entitled to khas possession.

(3.) It was contended in the first place that the defendant being an occupancy raiyat clause third of Section 11 should have been applied to his favour. This argument, however, cannot be supported in view of the decision of this Court in Jogeshwar Mazumdar V/s. Abed Mahomed Sirkar (1899) 3 C.W.N. 13. The lower Appellate Court states that the defendant No. 4 "is admittedly not a resident cultivator."