SASHI BHUSAN JHA Vs. SHAIKH AHMADULLAH CHAUDHURY

JUDGEMENT

(1.) One of the grounds taken in this appeal is that set out in the 8 paragraph of the memorandum of appeal. It is urged that the Court of Appeal below has omitted to some to a finding whether the holding (assuming, though not admitting, it to be an occupancy holding), is or is not transferable by custom as alleged by the defendant and that in the absence of a definite finding upon this point the decree for ejectment is wrong and liable to be set aside. The point was undoubtedly dealt with by the Court of first instance, the judgment of which states (after finding that the plaintiff gave no permission to purchase the holding), that it was fir the defendant to prove the alleged custom and usage with regard to transfer. It holds that he has failed to discharge that onus of proof, that his witnesses did not carry conviction and that the defendant's evidence does not establish that the Zemindars are bound to recognize the transferee as a tenant whenever nazrana is paid. The learned Munsif also expresses himself as not being satisfied on the materials placed before him that nazrana is paid by custom. In the judgment of the Subordinate Judge in appeal, it is pointed out that the contention which is set out in the let paragraph of his judgment, which is the last point there referred to, was that which had been most strongly pressed before him. Then in the conclusion of his judgment he says that as regards the other objections there is no substance in them. There is an affidavit that the paint was argued before the learned Subordinate Judge. Therefore, it has been contended that there should be a remand. It is possible that the points might have been mentioned. But it is quite clear that it was not the chief point pressed before him and it was in fast disposed of by the learned Subordinate Judge by his finding that there was no substance in the other objections taken in the case. I do not think that under such circumstances as these the appellant is entitled to a remand as regards this matter.

(2.) The objection taken in the 5 ground of appeal, is, that at any rate the Courts below failed to notice that one of the co-sharer original tenants, not being a party to the mortgage and the suit and other proceedings that followed, there was no transfer of the whole holding by the auction sale and under the circumstances the landlord could not re-enter. This objection was not taken in the lower Courts and involves a question of fact and, therefore, cannot be gone into in appeal.

(3.) The third ground is that the Court below has erred in not holding that the holding in suit is mokarari. Very clearly this ground has no substance, because ii has been found, as a fast upon the evidence that the term "Makara" has a local technical significance which is that given in the evidence. The learned Judge has accepted that evidence and points out that in some of the dakhilas the word Makara has been used bat it is explained that this word is used in, order to distinguish the land from halhasili lands in which rent may vary from year to year according to the areas cultivated with bhadoi crops." Both ha and the Trial Court have accepted the evidence on this head and this ground fails.