SRISH CHANDRA GANGULY Vs. ESOM MUSSALLI

JUDGEMENT

(1.) This appeal is directed against the decision of the learned Additional District Judge, Jessore, reversing the decision of the Munsif, First. Court, Jhenidah. The case in the plaint was that defendants 1 to 4 in the suit held an agricultural jama of Rs. 7.8-0 carved out of an original jama of Rupees 18-8-0. This jama included a plot of homestead land, plot No. 1720, on which the defendants lived. They went to-live elsewhere, and in 1434 B. S. erected a hut on the plot, and allowed the Mahomed an public to use it as a mosque. Further, they attempted to collect money by subscription to build a pucca mosque. The suit was brought under Section 25, Ben. Ten. Act. In the first Court, the substantial defences were that no notices under Section 155, Ben. Ten. Act, had been served on the defendants ; that the suit was barred by waiver and acquiescence as the landlord knew of, and assented to the erection of the hut for the specific purpose indicated; that the plot on which it stood was homestead land; that by law, equity and custom, defendants were entitled to erect a mosque, and that there was no user rendering the land unfit for the purposes of the tenancy. The Munsif decreed the suit against defendants 1 to 4. The decree directed the removal of the hut, gave nominal damages of one pice to the plaintiff, and directed khas possession on default. Further defendants 1 to 4 were permanently restrained from allowing the public to acquire any right on and from erecting or allowing anyone else to erect either a kutcha or a pucca jama ghar or mosque on the plaint lands.

(2.) On appeal, the learned Additional District Judge held, in agreement with the lower Court, that there had been a proper service of notices on the defendants, that the suit was not barred, that the original tenancy was an agricultural tenancy, that the plot on which the hut stood was a plot used as homestead land and comprised in the tenancy, and that the hut was a public mosque, erected with the obvious intent of using it for prayer as well as allowing neighbours of the same community to flock there and say their prayers there.

(3.) On these findings he came to the conclusion that such user did not hamper in any way the purposes of the tenancy and consequently constituted no ground for ejectment under Section 25, Ben. Ten. Act. The short point therefore for decision in this appeal is whether on the facts found, the tenant has used the land in a manner which renders it unfit for the purposes of the tenancy. On full consideration of the question, we are constrained to take the view that the answer must be in the affirmative. We are unable to hold that the erection of a place of public worship on land comprised within a tenancy originally created for the purpose of agriculture, is a species of user permissible under Section 23, Ben. Ten. Act. In our view, such permissible user must be user connected, directly or indirectly, with the purposes for which the tenancy was originally created, and attributable to the special needs of the tenant as an agriculturist. We do not think it can be said that the erection of an edifice intended for public worship, whether such edifice is constructed on homestead or on agricultural land, can be held to be such user.