RAJ Vs. AYESHA KHATUN

JUDGEMENT

(1.) THE only point for determination in this appeal is whether the learned Judge was right in holding that the heirs of the original underraiyat who had acquired a right of occupancy by custom were entitled to continue the appeal after the death of the original under-raiyat. It appears that the suit for ejecting the original under-raiyat, that is the predecessor ininterest of the respondents was instituted on 11 February 1928 on the ground that the under raiyati was determined by service of notice Under Section 49, Bengal Tenancy Act. THE plea of the original under-raiyat who was the defendant in the suit was that he had acquired at right of occupancy by custom and consequently he was not liable to be ejected by service of notice Under Section 49. While this suit was pending before the trial Court the new Bengal Tenancy Act came into operation on 21 February 1929. By virtue of Section 49-F of the new Act the under raiyati became heritable and consequently his heirs after his death would be entitled to possess the property as under-raiyats. THE position would have been entirely different if at the date of the institution of the suit the under-rayati was terminated and the original under-raiyat was a trespasser on the land. In view of the finding of the lower appellate Court which has not been challenged before us, viz., that at the time of the institution of the suit and at the date when the new Act came into operation the under rayati was not validly terminated and the original under-rayat continued to be an under-rayat as contemplated by Section 49-F in respect of the land in Suit, the under-rayati became heritable by the operation of that section and consequently after his death his heirs inherited the holding and were entitled to continue the appeal. We are accordingly of opinion that the learned Judge?s decision on this point is correct. THE appeal is accordingly dismissed with costs.