ISWAR CHANDRA NATH Vs. GOUR SUNDAR NATH

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice B.B. Ghose in a suit for ejectment.

(2.) On the 1 June 1892, the predecessors-in-interest of the plaintiffs granted a lease to the predecessor of the defendants. A premium of Rs. 30 was paid by the grantee to the grantor. The lease was for a term of 20. years and expressly provided that the grantee would have the status of a raiyat. The term of the lease expired on the 31 May 1912, yet the grantee continued in occupation till his death in 1914. Thereafter the heirs of the grantee have remained in possession.

(3.) On the 16 April 1916, the plaintiffs commenced the present action to eject the defendants on the allegation that the tenancy was not heritable and that they were consequently liable to be ejected, as trespassers. The contention that the tenancy was not heritable was founded on the allegation that although the lease stated that the grantee was a raiyat, he was in fact an under-raiyat in as much as the grantor had no higher status than that of a raiyat. The question consequently arises, whether it is open to the plaintiffs to eject the defendants on proof that, the allegations in the primary contract between the parties were false. Mr. Justice Ghose has held that the doctrine of estoppel applies and that the plaintiffs are not competent to prove that the status of the original grantee was other than what was described in the grant. We are of opinion that this view is clearly well-founded, and is supported by the decision in Bamandas Bhattachariya V/s. Nilmadhab Saha 35 Ind. Cas. 754 : 44 C. 771 : 20 C.W.N. 1340; C.L.J. 541 which has not been affected in any way by the decision of the Full Bench in Chandra Kant V/s. Amjad Ali 61 Ind. Cas. 466 : 48 C. 782 : 32. C.L.J. 296 : 25 C.W.N. 4 (F.B.). To test the contention of the appellants we may put the question, would it have been competent to the plaintiffs, after the lapse of seven years from the date of the grant, to eject the grantee on the allegation that his status was not that of a raiyat as stated in the lease but only that of an under-raiyat, and that the registration of the document was invalid because effected in contravention of the provisions of Section 85, Sub- section 2 of the Bengal Tenancy Act. The answer must obviously be in the negative. There is no room for doubt that the grantee acted on the faith of the recitals in the grant, which in fact were very material for the purposes of the tenancy. We are consequently of opinion that the decree made by Mr. Justice Ghose must be affirmed and this appeal dismissed with costs.