BHAGU SINGH Vs. MOHESWAR BARIK

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of possession of land on declaration of title. The second defendant is admittedly the landlord of the disputed property. A notification was issued by him inviting applications for acceptance of settlement of the land. The plaintiff, it is found applied on the 6 May 1917; thereupon the following order was recorded "Let the land be settled with the plaintiff at a rental of Re. 1 per bigha on taking kabuliyat from him on his paying Rs. 90 as salami and that the kabuliyat be given within 15 days." The slaintiff paid the salami; but the kabuliyat was not executed within 15 days, the plaintiff who had been in possession from before, however, continued in occupation. On the 14 September 1917, the plaintiff executed a kabuliyat according to the draft supplied to him by the officer of the landlord. Meanwhile, on the 27 August 1917, the landlord had cancelled what he considered to be a void agreement and directed a fresh notification to issue. The consequence was that the first defendant applied for settlement and an order was made in his favour. This took place after the kabuliyat had been executed by the plaintiff. In these circumstances, the Courts below have held that plaintiff acquired the status of a tenant and that he was entitled to succeed as against the subsequent grantee. We are of opinion that this view is manifestly correct.

(2.) It has been argued before us that the Courts below should not have made a decree in favour of the plaintiff without an investigation of the question whether the first defendant was or was not aware of the arrangement with the plaintiff. There is no force in this contention. The plaintiff, in our judgment, acquired the right of a tenant on the 6 May 1917, and no question arises as to competition between two persons. The delay in execution of the kabuliyat could not affect the tenancy which had already been granted to the plaintiff, and the landlord was not competent to cancel the arrangement with the plaintiff so as to enable him to make a new settlement.

(3.) The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.