MANMATHA NATH KAR Vs. PROBODH CHANDRA RATARI

JUDGEMENT

(1.) The plaintiff-respondent is the landlord of a non-transferable occupancy holding. His case is that there were two non-transferable occupancy holdings which were amalgamated and formed into one occupancy holding and held by Durga Charan and other heirs of the original tenant. He found that the defendant was in possession of the holding whereupon he brought the present suit for recovery of possession from the defendant who was a trespasser according to him. The defence was that there was a mortgage of a portion of the holding by the original tenant in favour of a third party and that in execution of the decree upon that mortgage the defendant purchased the portion mortgaged and was in possession thereof. He further stated that the entire holding was not mortgaged and that the original tenant did not leave possession of the portion of the holding not mortgaged. The controversy between the parties was limited to the question as to whether the mortgage-deed and the decree thereon covered the entire holding or whether they related only to a portion of the holding. In order to prove his contention the defendant produced some copies of the Settlement khatians. It appears that these khatians were not certified copies of the original Settlement khatian but are said to be copies served upon the defendant by the Settlement Officer. When the copies of the khaitans were produced they were received in evidence without any objection being taken by the plaintiff. By these copies of the khatian the defendant attempted to show that one of the plots mentioned in the khatians (Plot No. 996) was not within the mortgage or the decree and, therefore, the whole holding was not transferred to him. His case was that plot No. 2 of the mortgage-deed was not this plot No. 996 but a different plot No. 319, outside that holding. The plaintiff, on the other hand, contends that the second plot of the schedule to the mortgage is plot No. 996 and, therefore, the whole holding was included within the mortgage and the decree following it. Two objections were taken on behalf of the defendant : (1) that the holding in suit was not a non-transferable occupancy holding but a holding at a fixed rate of rent or a maurasi mokarrari holding; (2) that he was recognised by the plaintiff landlord who demanded rent from him after his purchase. The Trial Court dismissed the plaintiff's suit holding that the entire holding was not mortgaged and transferred to him. On the other two points the finding of the Trial Court was against the defendant. There was an appeal to the District Court which reversed the decision of the Munsif and held that the sale certificate covered the entire land of both the holdings and, therefore, the plaintiff was entitled to re- enter. There was a further appeal to this Court by the defendant, which set aside the decree of the lower Appellate Court and sent the case back for rehearing of the appeal on all the three points taken by the defendant. At the re hearing of the appeal the lower Appellate Court has come to the same conclusion as before and held that the defendant purchased the entire holding and, therefore, the plaintiff was entitled to a decree in ejectment, of the defendant. On the other two points the lower Appellate Court has found against the defendant in agreement with the Trial Court.

(2.) With regard to the first point, namely, that the holding is maurasi mokarrari holding, an objection is taken on behalf of the appellant to the finding by the lower Appellate Court on the ground that that Court has overlooked the oral evidence on the record in respect of the defendant's plea. The learned Subordinate Judge has found that the evidence discloses that the tenancy existed since 1312 and there is nothing to show that the tenancy existed before that year . He has, therefore, held that the defendant has failed to prove uniform payment of rent? for a period of 20 years--the suit having been brought in 1919 or 1328 B.S. The defendant contends that there is some oral evidence on the record which the Court should have taken into account and the statement that there is nothing to show that the tenancy existed before 1312 is unwarranted. There is only one witness examined on behalf of the defendant who speaks about this matter. We have looked into his evidence and we think that it does not carry the matter far and the learned Subordinate Judge was entitled to disregard it. He knows nothing of the jama or the creation of it. The vague statement that it existed for a long time is not sufficient evidence in support of the defendant's case. We do not think that there is any defect in the Judge's judgment in so far as the first point is concerned.

(3.) With regard to the third point, namely, the recognition by the plaintiff of the defendant as his tenant by demanding rent from him, it has been found on the evidence against the defendant. The learned Judge enters his finding in the following words: "I, therefore, do not find even the evidence of an intention to recognise the title of the defendant. My finding on this point too will, therefore, be against the defendant." The learned Advocate for the appellant has fairly admitted that this finding of fact concludes this point.