SM SARADA SUNDARI Vs. RAJANI KANTA MONDAL

JUDGEMENT

(1.) In this case the plaintiff's predecessors granted a potta to the defendants in 1316. Before we consider what that potta says we have first of all to consider what was the status of these lessors. They were recorded in the Record of Rights as ordinary occupancy raiyats. There is nothing to suggest that they were raiyats at fixed rate or that they were tenure-holders. The Munsif found that they were ordinary occupancy raiyats and the learned Subordinate Judge did not in terms purport to interfere with that finding and indeed he could not have done so without purporting to find on evidence that the Record of Rights had been rebutted. So it must be taken that the learned Subordinate Judge had to deal with this case upon the footing that the lessors were occupancy raiyats.

(2.) We now come to the effect and the meaning of the potta. The document so far as it purports to describe the interest of the lessors calls it a kaemi jote," that is to say, a holding with the quality of permanency. It does not profess to say that it is a mokarari interest and it does not state explicitly that the interest is that of a raiyat or that of a tenure-holder. So much if we look to the description of the lessors by itself. When we come to look at the interest which the potta purports to grant we find it described more than once as an "ordinary raiyati jote" at an annual rental to be held from generation to generation. It goes on to say: Besides the right to receive the rent neither myself, nor my heirs and successors will have any other right with regard to the said jote lands;" and this potta is described as an "ordinary raiyati jote potta.

(3.) Now, shortly after the patta had been granted the lessors assigned to the plaintiffs and the plaintiffs bring a suit in ejectment. The Munsif takes the view that this is an ordinary case of parties flouting Section 85, Ben. Ten. Act. The lessors are ordinary occupancy raiyats. They purport to give an under-raiyati lease of a permanent character contrary to the section. Therefore in order to deceive the registering officer they use the phrase "ordinary raiyati jote" by way of description of the interest granted. In these circumstances, he says that it must be taken that the defendants are in a position to be ejected after a proper notice under Section 49. He has also held that though in the Record of Rights a very short time after this potta was granted the defendants are described as under-raiyats with a right of occupancy by custom that cannot be right. He says that it is very probable that with this potta giving them a permanent interest the Settlement Officer recorded them as under-raiyats with a right of occupancy, but he disbelieves, upon the evidence given of decrees in ejectment and otherwise, that there is any local custom of this character in this neighbourhood, and in any case it would be a very extraordinary custom under which the defendants within a few months would acquire a right of occupancy on the footing that they were mere under-raiyats. Consequently he has held that the plaintiff's suit must succeed.