LAWS(PVC)-1933-4-30

NRIPENDRA BHOOSHAN RAY Vs. JOGENDRA NATH RAY

Decided On April 04, 1933
NRIPENDRA BHOOSHAN RAY Appellant
V/S
JOGENDRA NATH RAY Respondents

JUDGEMENT

(1.) This appeal arises out of a suit for ejectment under Section 155, Ben. Ten. Act. The suit was based upon the allegation that the defendant took settlement of two plots of land as an agricultural holding and has used the land in a manner which renders it unfit for the purposes of the tenancy and has also broken a condition of the lease which has made him liable to ejectment. The lease contained the following stipulation: On the lands of the aforesaid jama, I shall not bo able, without your permission, to set up any hat, bazar, gola or ganja or to erect a building or to manufacture bricks or to excavate a tank or pond; nor shall I be able to do anything, which renders the land unfit for agricultural purpose, that is, anything that impairs the value of the lands; but, if I do so, you shall be entitled to eject me from the jote with damages.

(2.) The plaintiff's case was that the defendant, in contravention of the stipulation aforesaid, has used the lands as a hat for molasses. The defence was that the lands do not constitute an agricultural holding and were not taken for agricultural purposes, that no hat was established on the lands and that the lands were not rendered unfit for cultivation. Other defences, e.g., as to non-service of notice, non-liability for compensation and non-maintainability of the suit were also taken. The Munsif made a decree, ordering that, within a month from the date of the decree, the defendant should make the lands fit for cultivation and for growing agricultural crops and should pay Rs. 25 as compensation to the plaintiff, and that, in default, the plaintiff should get khas possession of the lands and also recover the said amount as compensation from the defendant.

(3.) There was an appeal and a cross-appeal from the Munsif's decision, which were both dismissed, with the modification that the amount of compensation was fixed at Rs. 5. The defendant has appealed. The question involved in the appeal is no longer a question of substance, but one of sentiment only, for the stipulation, to which reference has been made, was inserted with the real object of preventing the defendant from using the two plots of land as an adjunct to or a place which could be used for any purpose which would afford facilities for a hat, which the defendant has got on the other side of a channel and just opposite thereto, and that object has been gained by an injunction which, I am told, has been issued in plaintiff's favour and against the defendant and which will now subsist. As however the parties are very keen about the contest that they raised in this case, the appeal would necessarily have to be dealt with on its merits. To determine the controversy between the parties, it has to be seen, in the first place, as to what exactly is the use that the defendant has made of the lands. On this point, the finding of the District Judge, which is very lucidly expressed, is as follows: It appears that, on Sundays and Thursdays, a large number of carts laden with gurh dealers and other men assembled on plot No. 549. These carts carried gurh, evidently for the purpose or being sold. The men, who brought them or the other men who assembled on the plot, evidently were the buyers or the sellers of the commodity, but the exact evidence is wanting whether the purchase and the sale took place on plot No. 549 or whether the gurh was carried across the river to Chaprail. My conclusion is, upon reading the evidence and considering the probabilities of the case, that plot No. 549 was meant to be used as a landing stage for the carts and boats and a temporary dumping place for the commodity arrived from the west of the river and meant to be taken over to the eastern side.