DABIRUDDIN SARKAR Vs. AFADDI MAMUD

JUDGEMENT

(1.) This is a suit for ejectment. The defendant in that suit is the appellant before mo. The case for the plaintiff was that the defendant was an under raiyat whose tenancy had been terminated by a notice to quit. The defendant denies that he received the notice. He says that the plaintiff is only one of several co-sharers and that the suit would not lie unless they are made parties to the plaintiff's suit. He also says that he has an occupancy right in the disputed land and he claims, in any case, to be entitled to compensation for improvements which he made on the property. The question as to notice to quit has been decided against the defendant. It has been decided by the lower appellate Court differing from the trial Court that there had been a partition between the plaintiff and his co-sharers some 10 or 12 years ago. The evidence and the reasonings on which the learned Subordinate Judge comes to his finding that the plaintiff is the sole landlord do not appear to me very cogent, but I am bound by his finding as it is a finding on a question of fact.

(2.) The only point which has been really contested in this Court is the question whether the defendant is or is not an occupancy raiyat. The trial Court considering the evidence which had been produced, particularly certain rent receipts, held that the defendant's father was a Chukani tenant of the disputed land. He pointed out that in the present case the defendant was treated as a tenant on the death of his father. He relied on rent receipts as showing that the jama had been in existence for more than 12 years, and relying on the case of Jogendra Nath V/s. Chandra Kumar 1914 Cal 661 he held that the defendant had got an occupancy right in the disputed land. The lower appellate Court appears to me to differ from the decision to which I have just referred. The learned Subordinate Judge says: The authority does not seem to go so far as to lay down that the very description "Chukani" signifies that it must be a raiyati holding.

(3.) He then quotes from the report of the rent commission on which the learned Judges of this Court relied and says: I have already stated my reasons for finding that the plaintiff is a raiyat owning a small holding. The defendant who holds under a raiyati holding can have no better status than that of an under raiyat simply because his holding is described as a Chukani.