SAFAR ALI MIA Vs. ABDUL RASID KHAN

JUDGEMENT

(1.) This appeal is preferred by the principal defendant No. 1. It arises from a suit instituted for the purpose of recovering possession of a piece of land within the Municipal limits of Noakhali.

(2.) The plaintiff's case is that his predecessor in interest Mahommed Israil, as owner of the superior interest, described as raiyati interest, created an Osat raiyati in respect of the land in favour of Ramjan Ali and Asraf Ali in the year 1287; that defendants 2-6 are the descendants of Ramjan, and defendant 7 of Asraf Ali, that defendant 1 bought the rights of Ramjan's heirs and defendant 8 the rights of Asraf's heir, that defendants 2 to 8 have abandoned and that the first defendant, now the appellant, the purchaser from Ramjan's descendants is in possession. The plaintiff further alleges that the Osat raiyati was created for the purpose of habitation, and that the Kabuliat executed by the original lessees Ramjan Ali and Asraf Ali contained a stipulation to the effect that the lessees should not have the right of transfer. He also says that there is no local custom sanctioning transferability of such interests. On the double ground that the original lease forbade transfers, and that there is no local custom in defendant's favour, he seeks to recover khas possession. Both the Courts below have decreed the plaintiff's suit.

(3.) Their finding in regard to the plaintiff's interest has not been challenged before us. The only question for decision is whether the interest created in favour of Ramjan Ali and Asraf Ali could be transferred by sale.