ABDUL KARIM MASTER Vs. RAJ CHANDRA GHOSE

JUDGEMENT

(1.) THIS is an appeal on behalf of defendant 1 in a suit which was instituted by the plaintiff for his ejectment on declaration of plaintiff's title. The plaintiff claimed to be the purchaser of a Noabad taluk at a revenue sale held on 8 January 1937, and his case was that as such he was entitled to annul the.interest of defendant 1 under Section 12 of Act 7 of 1868 (B.C). The defence was that defendant 1 was protected under Section 14 of the Act inasmuch as he was a raiyat having a right of occupancy at a fixed rate, and in support of this plea, he relied upon the entry in the last revisional survey of Chittagong held in 1930 wherein he was recorded as a jotedar. Both the Courts below negatived this defence and decreed the plaintiff's suit. Hence the present appeal. The first point taken on behalf of the appellant is directed against the finding that the entry in the revisional khatian was wrong. It appears that in the previous cadastral survey which took place in 1898, defendant 1 was recorded as an etmamdar. A note was added in the remark column against this entry that this was not binding on Government. That, to my mind, only meant that although the tenancy was recorded as a tenure, it was not to be treated as a tenure created or recognized by the settlement proceedings. The note did not in any way weaken the effect of the entry that the interest was that of a tenure-holder. The learned Judge in the Court of appeal below as well as the trial Court held that this record, taken with the other evidence in the ease, was sufficient to negative the entry in the B.S. Khatian. As regards the other evidence, reference was made by both Courts to a mortgage deed in which defendant 1 himself had described his interest as that of an etmamdar. THIS mortgage deed was executed in 1921. Mr. Eakshit contends that as the settlement under the cadastral survey was for the period ending in 1925, any entry made therein could not be regarded as good evidence as to the status of he defendant for a subsequent period. I am not prepared to accept that argument. The mere fact that that settlement was for the period upto 1925, would not, in my opinion, make the c.s. record inadmissible in evidence on the question as to whether defendant 1's status as recorded therein continued to be suoh or not after that year. The mortgage deed of 1921 would, in my judgment, be equally relevant evidence on the point. That being so, I think the Courts below were justified in relying on these materials for the purpose of holding that the revisional survey khatian was incorrect. The first point urged on behalf of the appellant must consequently fail, and defendant 1 cannot, accordingly, claim protection under Section 14 as an occupancy raiyat.

(2.) IT is next urged that if defendant l's interest is that of a tenure-holder, he comes under the third exception of section 12 of Act 7 of 1868 (B.C.) and is entitled to exemption from eviction on that basis. This clause refers to "tenures created or recognized by the settlement proceedings of any current temporary settlement as tenures bearing a rent which is fixed for the period of such settlement." The difficulty in the appellant's way is that although the learned Judge has held that his interest is that of a tenure-holder, the tenure cannot be regarded as a tenure recognized by the current settlement proceedings. The current settlement is the revisional settlement, and ex hypothesl the defendant is recorded therein as a jotedar, though wrongly. IT is difficult to see therefore how he can bring himself under Clause (3). Mr. Eakshit refers to the definition of "tenure" in the Act, according to which it includes all interests in land. The argument is that the interest of a jotedar must therefore be held to be a tenure within the meaning of Clause (3) of Section 12. Beading the definition as a whole, I do not think that it can be given so wide a meaning. Tenure is no doubt said there to include "all interests in land," but although this expression is used, it will be observed that the real object of the definition is to be found in the rest of the paragraph containing the definition, and it could not have been intended to include the interest of a jotedar or raiyat. At any rate, it seems to be fairly clear that the interests referred to as "tenures" in the various exceptions under Section 12 are something distinct from raiyati interests which are separately dealt with in Section 14. The interests which a purchaser is entitled to avoid under Section 12 are all described as "under-tenures," and the exceptions in the section must obviously refer to interests of a similar character, and cannot therefore include the interests of raiyats. In this view o? the matter, I must hold that the second branch of Mr. Rakshit's argument is also untenable. The result is that this appeal fails, and is dismissed with costs.