SUNDAR ALI Vs. NUR MAMUD

JUDGEMENT

(1.) THIS appeal is on behalf of the defendants and arises out of a suit for possession. The plaintiffs case is that the land in suit belonged to pro forma defendant 23 who had let it out to them. It is on the basis of this tenancy that the plaintiffs have instituted the suit for possession. The defendants in their written statement challenged the title of the plaintiffs and they further set up a right to use the land for the purpose of steeping jute, etc., a right in the nature of an easement. The Court of first instance found that the plaintiffs had not been able to establish their tenancy under defendant 23 and also found that the contesting defendants had not been able to substantiate their claim of easement as against the landlord. In this view of the matter, it negatived the claim of the principal defendants and also dismissed the plaintiff's suit on the basis that they had no title. An appeal was preferred by the plaintiffs. The lower appellate Court found that the plaintiffs had established their tenancy right and accordingly decreed the suit with a direction for ascertainment by the Court of first instance of mesne profits. Before the lower appellate Court it seems that the defendants did not reagitate their claim to easement rights. Against the judgment and decree of the lower appellate Court, the defendants have preferred this appeal.

(2.) WHILE the appeal was pending here, pro forma defendant 23 died and no attempt was made to bring on record his legal representatives. Mr. Chakravarty who appears for the respondents accordingly urges before me a preliminary point, namely, that the appeal is incompetent by reason of the death of defendant 23 and that the plaintiffs did not bring on record his legal representatives. I do not think that there is any sub-stance in this preliminary objection. The suit would have been quite all right even if it had been instituted by the plaintiffs against the contesting defendants without impleading this person as a defendant. There is no apprehension of there being any inconsistent decree if the appeal were to be allowed by me, on the ground that no decree had been made either in favour or against the pro forma defendant 23 and could not have been made, having regard to the frame of the suit. It is for these reasons that I overrule the preliminary objection. To come back to the merits: for the purpose of proving the tenancy, the plaintiffs produced before the Court a document which is called a Hukumnama. Both the Courts below have come to the conclusion that document is not simply an order for delivery of possession to the defendants by the landlord but is a present demise. Both the Courts below therefore have ruled that document out of evidence on the ground that it is not registered. The lower appellate Court however has held that there is oral evidence to support the tenancy which the plaintiffs obtained from the pro forma defendant 23. In the first place, the pro forma defendant 23 filed his written statement admitting the tenancy. Secondly, there is oral evidence which has been believed by the lower appellate Court in support of the tenancy of the plaintiffs. Dr. Mukherjee who appears for the appellants urges that this oral evidence is not admissible at all. A tenancy can be proved by documentary or oral evidence. It is a suit by the plaintiffs against a trespasser and in order to succeed the plaintiffs are not bound or are required to prove the terms of the tenancy which they obtained from the pro forma defendant 23. If they could simply prove that defendant 23 had accepted rent from them, that would have been quite sufficient for the purpose of maintaining a suit against the defendant who is a trespasser. In these circumstances, I hold that the lower appellate Court is right in holding that the plaintiffs had established their tenancy right under defendant 23 by the evidence which I hold is admissible in law. The result is that this appeal is dismissed with costs.