ANNANDA CHARAN NAIYA Vs. MANMATHA NATH MITRA

JUDGEMENT

(1.) The plaintiff in the suit in which this appeal has arisen prayed for recovery of possession of the lands described in his plaint on declaration of his title. It appears that the lands m suit, 22 bighas 81/2 cottas in area, was comprised in a tenancy of 25 bighas 81 cottas held by one Durga Earn Ghose. The lands were purchased by one Jadu Nath Bairagi in the year 1907, and were constituted into a separate tenancy on payment of substantial selami to the landlord. It is in evidence that for a portion of the selami Jadu Nath Bairagi executed an instalment bond, which sets forth that kharij was granted on payment of selami (nazar). In the year 1913 defendant 1 in the suit purchased the lands from Jadu Nath Bairagi, and dfeendants 2 to 4 were settled as tenants under defendant 1 in the year 1925. So far as the transfer in favour of defendant 1 was concerned it is to be noticed that the landlord continued to grant rent receipts in the name of the tenant Jadu Nath Bairagi. It was in evidence that so far as defendant 1 was concerned the landlord's naib asked for kharij fees, and that the defendant was willing to make some payment for mutation of his name in the landlord's sherista, but that at the end there was no payment made as the amount demanded was large. The next stage of the case is the one appearing from the settlement records. In the settlement records as finally published defendant 1 was recorded as a permanent tenure-holder, the rent payable by whom in respect of the tenancy was liable to enhancement. As the learned Subordinate Judge in the Court of appeal below has remarked, "immediately after such records the plaintiff brought the present suit almost as a protest." The protest on the part of the landlord plaintiff being in regard to the entry in the settlement records that defen dant l's status was that of a permanent tenure-bolder with the incident of trans ferability attached to it.

(2.) The plaintiff's suit was for ejectment on the ground that the tenant Jadu Nath Bairagi had no saleable interest in the tenancy, that the said tenant had abandoned the holding and that defendant 1 had obtained no title by his purchase of the lands in suit from Jadu Nath Bairagi. The plaintiff's claim in suit was resisted by the defendants. It was pleaded by defendant 1 that Jadu Nath Bairagi's tenancy purchased by him was a permanent tenure, and he had therefore a valid title in him by virtue of his purchase. Defendant 1 also claimed title acquired by him by adverse possession as against the plaintiff landlord, The other three defendants in the suit, defendants 2 to 4, asserted that they were in possession of the lands in suit as bona fide tenants and were not liable to be evicted by the plaintiff. A number of issues were raised for trial in the suit, and the most important of them was issue 1: "Was the tenancy of Jadu Nath Bairagi an occupancy raiyati holding or a permanent tenure?" The other issues related to the question whether permanent interest was asserted to the knowledge of the plaintiff, whether the plaintiff had recognized defendant 1 as tenant, and could defendants 2 to 4 claim to be bona fide raiyats, not liable to eviction. There was also an issue raised on the question of mesne profits claimed by the plaintiff in the suit. The trial Court dismissed the suit, holding that the jote of Jadu Nath was a permanent tenure transferable at law Under Section 11, Ben. Ten. Act. Defendant 1, his transferee, is entitled to hold it as a tenant under the plaintiff and the plaintiff cannot enter.

(3.) On appeal by the plaintiff, the Court of appeal below reversed the decision of the trial Court, and passed a decree in favour of the plaintiff: The plaintiff was to get khas possession of the property in suit after evicting the defendants and the mesne profits on the basis of rent