SHEK BASARADDI Vs. KROSHALI TALUQDAR

JUDGEMENT

(1.) This appeal is by the defendants in a suit for the recovery of possession of a plot of land on declaration of the plaintiff's title thereto, and also for the recovery of rs. 60 as the price of the plaintiff's share of the produce for three years. The land in suit measures about three kanis. Admittedly, it belonged to one Govinda. Govinda died leaving a widow and a will. The widow as executrix of this will sold the land to the plaintiff on 29 Falgun 1326 B.S. The plaintiff's title to this land by this purchase is no longer in dispute. Admittedly, the land has been in possession of the defendants from the time of their predecessor, Sk. Ahadi. The plaintiff's case is that Sk. Ahadi came on the land on a labour contract under a registered kabuliyat, dated 29 Magh 1299 B.S. (10 February 1893). The term of the contract expired in Kartic 1301 B.S. Ahadi, however, continued to cultivate the land as a labourer on the same terms till his death, and since his death, his heirs, the defendants, have been cultivating the land as labourers on the same condition. The plaintiff, no longer, considers it desirable to get the land cultivated by the defendants. The defendants claim the land as comprising their tenancy under the plaintiff, and their case is that the land was held by their pre- deeessor Ahadi, and after him, by themselves in a tenancy right under the plaintiff's predecessor Govinda; and it was always so held by them since Govinda's death. The defen. dants claim the status of an occupancy raiyat in respect of their tenancy of the said land. The Court of first instance held that the defendants had a tenancy in the land in suit, and, consequently, were not liable to eviction in this suit. It accordingly dismissed the plaintiff's prayer for recovery of khas posses, sion. On appeal, the Court of appeal below reversed this decision, and decreed the plaintiff's claim for khas possession, holding that the defendants were mere labourers on the land.

(2.) The present appeal before me is directed against this decision, and the principal question that arises for consideration is whether the defendants have succeeded in establishing their tenancy in respect of the suit land. At the trial, the following facts transpired in evidence,and these are not now in dispute: (1) The defendants predecessor, Sk. Ahadi came on the land under the terms of the kabuliyat, dated 29 Magh 1299 B.S. (12 February 1893). This kabuliyat is Ex. 1 in this case. (2) The land was full of jungle when Ahadi came on it. He reclaimed it and made it culturable. (8) Ahadi remained in possession of the land oven after the expiry of the term, and continued in possession till his death. (4) About the year 1916, in the cadastral survey record Ahadi was recorded as having a raiyati with occupancy right in this land. (5) On Ahadi's death in about 1918, his heirs treated his interest in the land as heritable and treated this as an inheritance from him. (6) In 1936, the present plaintiff instituted a suit for the recovery of his dues from the defendants in respect of the suit land, and he instituted this suit in the rent file, it being Rent Suit No. 64 of 1936. (7) In 1937 defendant 1 purchased the share of a daughter of Ahadi in the land on the footing that it was a raiyati and paid the landlord's fees as required under Section 26C as it then stood. The landlord on receiving notice of this sale under Section 26C made an application for pre-emption in 1938 in exercise of his right under Section 26P, Bengal Tenancy Act, as it then stood, obviously, on the footing that what was sold was a tenancy and was a raiyati.

(3.) In coming to the conclusion that the defendants had a tenancy in the suit land, the learned Munsif relied on the conduct of the plaintiff in connexion with the preemption proceeding of 1938 and the rent suit of 1936, and observed that from the said conduct of the plaintiff, it might be said that the occupancy raiyati status of the defendants was admitted by the plaintiff. He also relied on the kabuliyat itself. According to him, the parties to the kabuliyat intended to create a tenancy, and this intention of theirs was substantiated by their subsequent conduct as also by the established purpose of the transaction as evidenced by the kabuliyat.