UPENDRA KISHORE SARKAR Vs. SHAIK KHALIL FAKIR

JUDGEMENT

(1.) This appeal has arisen out of a suit for recovery of possession of certain land upon establishment of the plaintiffs title thereto.

(2.) The plaintiffs ease is that the defendants predecessor Alam Fakir held the land as an under-raiyat under him. He served a notice of ejectment under Section 49, Ben. Ten. Act, on Alam Fakir who died after the service of the notice. The defendants claimed that Alain Fakir was a settled raiyat and had a heritable right and that they were entitled to hold the land as raiyats by inheritance and not liable to ejectment. The suit was decreed in the Court of first instance but dismissed on appeal on the ground that Section 48 (c), Provs. (1) and (2), Ben. Ten. (Amendment) Act, 1928 would apply, inasmuch as Alam Fakir was in possession for nearly 30 years and that therefore the defendants cannot be ejected. The learned Additional District Judge appears to have failed to notice that the suit was brought long before the Amendment Act came into force and it was actually decreed in the Court of first instance before that Act came into force. Section 48 (c), Amendment Act of 1928, therefore cannot apply to the present case. Apart from this, the finding is that Alam Fakir, the predecessor of the defendant, was an under-raiyat and the Court of first instance has found that the under- raiyati was not heritable. This finding has not been reversed in the Court of appeal below and that being so, the defendants are trespassers and liable to ejectment without notice.

(3.) It is suggested on behalf of the respondent that the patta, Ex. D, should have been admitted as evidence of an admission on the part of the plaintiff that this was an occupancy holding. Reliance has been placed by the learned advocate on the case of Rajani Kanta Deb v. Bashiram Mestari in support of this proposition. But even if it is so admissible, it merely shows that at the time this patta was executed, the plain-tiff referred to the holding as a jote. The word " jote " does not necessarily mean an occupancy holding: it may mean a raiyati, under- raiyati, or any sort of holding for the purpose of cultivation. Moreover the Court of first instance held that it was doubtful if this patta was genuine, inasmuch as it has seen the light of day for the first time, in this case. In these circumstances, it cannot; be said that the Courts below committed an error of law in holding that the entry in the settlement khatiyan has not been rebutted, even supposing that the patta is admissible in evidence to show that the holding is a jote. The appellate Court does not expressly exclude it from evidence the learned Judge merely says that it could not be received as a document creating any title in the lessee as it was not registered. Finally it is contended that Section 48 (c) has retrospective effect and a parallel is drawn between this section and Section 21, Ben. Ten. Act, which has been held to have retrospective effect. But the two sections are totally different. Under the provisions of Section 21 (2) a settled raiyat shall be deemed to have acquired a right of occupancy in any land previously held as a raiyat " under the law then in force." This expressly gives the section a retrospective effect. There is no such provision in Section 48 (c). The mere fact that the 12 years possession which confers occupancy right may occur before the commencement of the Act has no effect whatever in making the Act retrospective.