DURGAPADA KARMAKAR Vs. NRISINGHA CHANDRA

JUDGEMENT

(1.) This is an appeal by defendants 1 and 2 in an action for ejectment. Plaintiffs case is that the plaint land was let out to the defendants at an annual rent of Rs. 3 that the tenancy was a tenancy at will and was determined by a notice to quit. On these allegations plaintiff brought the present suit for ejectment. The defendant pleaded inter alia that the plaintiff was not the owner of the entire land, that the northern portion of the land about 1 1/2 cottas in area was settled permanently by the predecessor in interest of the plaintiff in the name of the defendants eldest brother Ananda in 1319 B.S. by an unregistered patta. The defendants also claimed mokarari right on the basis of a new oral settlement by the plaintiff after his purchase. The defendants also claimed compensation for the structures raised by them on the disputed land. The trial Court decreed the plaintiffs suit. On"appeal before the lower appellate Court the learned Judge has come to the following findings:(a) That the plaintiff is the sole owner, (b) That the patta dated 1319 B.S. relied on by the defendant is one of doubtful origin, (c) That even if the patta be genuine it cannot create a permanent interest as it was not registered, (d) That the defendant cannot get the benefit of Section 53-A, T.P. Act. (e) That the incidents of the tenancy are governed by the Transfer of Property Act. (f) That the tenancy has been validly terminated by a notice to quit, (g) That the defendants being tenants at will are not entitled to claim any compensation for the structures raised. The learned Judge accordingly dismissed the appeal. Hence the present appeal by defendants 1 and 2.

(2.) Two points are raised by the learned advocate for the defendant in support of this appeal: (1) That the defendants are entitled to get the benefit of Section 53-A, T.P. Act. (2) That in any event the defendants are entitled to get compensation for the structures raised by them.

(3.) As regards the first point the line of reasoning adopted by the learned advocate for the appellant is this: The unregistered lease was found to be genuine by the trial Court. The lower appellate Court has not reversed this finding, though he had some doubt about the origin of this document. The patta must therefore be taken to be a genuine document. It created a permanent lease and though it was not registered the defendants came into possession on the basis of the said patta which was for consideration. There has been consequently part performance of the contract. Section 53-A is retrospective in its operation and applies to pending actions. Therefore, though the present suit was instituted on 10 June 1929, the plaintiff is debarred from ejecting the defendants.