ROHINI RANJAN DAS Vs. UMESH CHANDRA DATTA

JUDGEMENT

(1.) This appeal is by the plaintiff in a suit for recovery of possession of the property described in the schedules to the plaint by ejecting the under-tenants on the avoidance and annulment of their under-tenures. The lands in dispute appertain : to Noabad Taluk Krishna Chandra Gokul Chandra Adhikari, which is touzi No. 34529 of the Chittagong collectorate. It is not disputed that this taluk comprises two mouzas, namely Mouza Kokdandi and Mouza Jungle Kokdandi. The plaintiff is the purchaser of the touzis at a sale held for arrears of revenue under the Bengal Council Act, 7 of 1868. The plaintiff purchased the touzis on 26 June 1936 and took possession on 29 May 1937. He instituted the present suit on 6 April 1938. His case is that under the touzi there was an etmam Lakhi Chandra Dutta bearing a rental of Rs. 26-4-0. This etmam so far as it related to Mouzah Kokdandi was recorded in Khatian No. 776 of the revisional survey and so far as Mouzah Jungle Kokdandi was concerned it was recorded in Khatian No. 151 of the same revisional survey. The lands of Mouzah Kokdandi are given in Schedule 1 of the plaint and those of the other mouzah are given in Schedule 2. According to the plaintiff this etmam was an under-tenure liable to avoidance and annulment within the meaning of Section 12, Bengal Council Act, 7 of 1868, and he purchased the touzi with title to avoid and annul this under-tenure. There were altogether 13 defendants in this case. Of these defendants, 1 to 5 appeared and contested the claim by one written statement and defendants 6 and 7 contested the suit by another written statement. The case of the defendants is that the plaintiff is a mere benamidar of the defaulting proprietor of the touzi and as such has no right to avoid and annul the under-tenure; that these defendants have raiyati interest in the lands of the two schedules and consequently the same are not liable to annulment and avoidance e. that the etmam in question is protected by the third excepting clause of Section 12, Bengal Council Act, 7 of 1868.

(2.) The first Court dismissed the claim of the plaintiff in respect of the lands of Schedule 1 holding that the same constituted a raiyati of the defendants. The controversy between the parties so far as the lands of this schedule are concerned is now at an end. As regards the lands of Schedule 2 of the plaint the first Court decreed the plaintiff's suit holding (1) that the plaintiff was not a benamidar of the defaulting proprietor; (2) that the etmam in question was not protected by the third excepting clause of Section 12, Bengal Council Act, 7 of 1868; (3) that the lands of Schedule 2 were khas lands appertaining to this etmam: and (4) that the defendants failed to prove their raiyati interest in the lands of this schedule. On appeal by the defendants the Court of appeal below dismissed the whole suit of the plaintiff holding that the etmam in question was protected by the third excepting clause of Section 12, Bengal Council Act, 7 of 1868 and that the defendants had a raiyati in respect of the lands of Schedule 2.

(3.) Mr. Choudhuri, appearing in support of the appeal, assailed the judgment and decree of the Court of appeal below on the following grounds : (1) That in holding that the etmam was protected by the third excepting clause of Section 12, Bengal Council Act, 7 of 1868, the Court of appeal below went wrong in its interpretation of the clause. (2) That in arriving at the conclusion that the defendants had a raiyati interest in the lands of Schedule 2 of the plaint the Court of appeal below went wrong in starting with the erroneous assumption that the Touzi No. 84529 was identical with the old Touzi No. 1729: that as a matter of fact there is absolutely nothing on the record of the present case to establish this identity. (3) That the finding arrived at by the Court of appeal below that the defendants had a raiyati in respect of the lands of Schedule 2 is not sustainable, the same being based on evidence not legally proved in the case. There is no substance in the third point raised by Mr. Choudhuri. Mr. Choudhuri contends that Ex. c, a copy of the plaint in a previous suit inter partes, has not been legally proved in this case. Exhibit e is a copy of the plaint in a previous suit served on the defendant in that suit and the said defendant himself has proved it. The evidence on the point has been placed before me and in my opinion the document has been fully proved by this evidence. This objection therefore has no substance and it does not appear to have been taken in the Court of appeal below.