ARJUN CHANDRA MANDAL Vs. TRAILAKYA MANI DASSI

JUDGEMENT

(1.) This is an appeal preferred by the plaintiffs who had instituted a suit for recovery of khas possession of certain lands from the defendants. The subject-matter of the suit were certain lands and a hut constituting an under-tenancy which was created by one Brahmamoyi, a Hindu widow, so far back as 1898. The under-tenancy was created by a document which purports to have been a permanent lease granted by the said Brahmamoyi in favour of the defendants. The document is a registered one. By this document she purported to create a permanent under-tenancy in the lands in respect of which she said that she had a Kaymi Mourashi right, In 1915-16 there was a settlement Record of Rights in which the rights of the defendants were recorded as being those of a Korfa tenant with a right of occupancy acquired by custom. Brahmamoyi died some time about the year 1332, Thereafter, the plaintiffs, as reversioners to the estate of Brahmamoyi's husband, had instituted the present suit for ejecting the defendants. The trial Court decreed the suit.

(2.) The Subordinate Judge has reversed the decision of the trial Court and has dismissed the suit. The principal question in the case was as to whether the lease that was granted by Brahmamoyi in favour of the defendant was justified by legal necessity. The trial Court appears to have recorded some findings which would go to indicate that it was not satisfied as to the bona fide character of the lease and yet towards the end of its judgment the said Court laid down a condition on which the plaintiffs would be entitled to recover khas possession. The condition so laid down was that an amount of Rs. 50 which defendant 1 alleged that he had paid to Brahmamoyi on account of this lease together with interest at the rate of 6 per cent per annum from the date of the lease to the date of the suit would have to be paid within a month of the date of decree. The trial Court ordered that if this condition was fulfilled the plaintiffs would be entitled to eject the defendants.

(3.) The Subordinate Judge has held that there was no legal necessity for the transaction, but he has dismissed the suit holding that the defendants have acquired a right of occupancy. One of the arguments that has been addressed to me on behalf of the appellants is that the Subordinate Judge has not gone into the question of the bona fides or otherwise of the transaction and that if he had done so he could have held that the defendants who come upon the land as a result of a lease which was not granted bona fide could acquire no rights under it. It appears to me on a perusal of the judgment of the Subordinate Judge that this contention is not well founded. The learned Judge appears to have expressly referred to this condition which the Munsif had laid down and then he observed as follows: I should say that the fact of the payment of the money by defendant 1 to Brahammamayee and of the latter's appropriation thereof for a just and commendable purpose does not by itself make the transaction as being one for legal necessity.