RAIJADDI SHAIKH Vs. SARJAN BISWAS

JUDGEMENT

(1.) This appeal is in a suit instituted by the plaintiffs-appellants for recovery of khas possession. Their case is that one Kaem Biswas held under them and their predecessors the lands in suit in under-raiyati right, and on his death the defendants, who are his heirs, are trespassers inasmuch as under-raiyati interests are not inheritable in law. The main defence is that the defendants are entitled to remain on the and as tenants as they are under-raiyats with the right of occupancy and as a heritable right had been conferred on their predecessor, Addas Biswas, by the predecessor of the plaintiffs, Aber Muhammad by a registered patta (Ex. C) dated 24 Assar 1303. Both the Courts have dismissed the plaintiffs suit.

(2.) The said patta described the status of the grantor, Aber Muhammad, as that of a raiyati at fixed rates and on that footing a heritable right was conferred on the grantee, Addas Biswas. The position therefore is that even if the status of the grantor Aber Muhammad had in fact been that of an occupancy right he and his representatives could not have gone back upon the grant and treated the heirs of Addas Biswas as trespassers on the footing that an under-raiyati interest is not heritable. The principle of estoppel formulated by the Full Bench in Chandra Kanta Nath V/s. Amjad Ali, 1921 Cal 451 would have been a complete answer to them. Aber sold 4-annas share of his jote to the plaintiffs who on a partition got all the lands included in Addas lease in their allotment. Thereafter the superior landlord Narendra Nath Ghosh, obtained a rent decree against the plaintiffs in respect of their jote and at the sale in execution thereof one Preonath Sen purchased the holding. Thereafter Preonath Sen sold the jote to one Tota Bibi who has been found to be a benamidar of the plaintiffs. She served a notice under Section 167, Ben. Ten. Act, on the defendants predecessor, Kaem Biswas, the son of Addas Biswas, and thereafter sued him for khas possession, but the said suit was dismissed on the ground that Tota Bibi was the benamidar of the plaintiffs, the defaulting tenants. Thereafter the plaintiffs brought successive suits for rent against Kaem Biswas and recovered decrees.

(3.) Mr. Chakraburty appearing for the appellants contends that the plaintiffs are entitled to succeed. He says in the first instance that the defendants predecessor Kaem Biswas, who was an under-raiyat, had no doubt acquired an occupancy right by custom, but the defendants cannot resist the plaintiffs claim unless they prove that by custom such a right is heritable and there is no proof of the same. There is great force in this part of Mr, Chakraburty's argument, but it is not necessary to consider it as the ground on which the Subordinate Judge has dismissed the suit is a substantial and good ground. The Subordinate Judge has held that the plaintiffs are estopped from pleading that they are mere occupancy raiyats or that the patta Ex. C is invalid by reason of the provisions of Section 85, Ben. Ten. Act. Mr. Chakraburty contends that there can be no scope for the application of the doctrine of estoppel as his clients are not claiming under their purchase from Aber Muhammad, but under a title derived from Preonath Sen, the purchaser of the jote at a rent sale. I do not think that this contention is sound. After their purchase from Preonath Sen in the benami of Tota Bibi the plaintiffs instituted three rent suits for rent against Kaem Biswas. These suits are Rent Suits No. 1057 of 1915, No. 96 of 1917 and No. 1186 of 1919. In all these suits the plaintiffs accepted the patta Ex. C and based their claim to get rent on the basis thereof. The jote came back to them after the rent sale and thereafter they accepted the patta Ex. 0 in the plaints in the said rent suits. These facts, precluded them from going back upon the terms of the patta Ex. C, and they are bound by all its covenants. The appeal is accordingly dismissed with costs. Leave to appeal under the Letters Patent asked for is refused.