BIDHUMUKHI Vs. GOBINDA CHANDRA PAL

JUDGEMENT

(1.) This is an appeal by the defendants and it arises out of a suit for khas possession of certain lands by the plaintiff after service of notice under Section 49 of the Bengal Tenancy Act. The plaintiff stated that the defendants took an under-raiyati lease from them in 1293 of 1 kani of land for a term of 9 years and that the plaintiff on the expiration of the term of the lease served a notice upon the defendants under Section 49 of the Bengal Tenancy Act and that the defendants having refused to vacate the lands this suit is brought for khas possession of the land covered by the under-rayati lease of the defendants.

(2.) The defence of the defendants was that they were the owners of kaimi mourashi tenancy of the homestead of one Jagamohun Bhuiya measuring about 2 kanis of lands and that in 1293 the defendants sold the same to the plaintiff and on that very day they took a sub-lease by a registered patta from the plaintiff of a portion of the land sold by them to the plaintiff which was their own homestead comprising an area of I kani at a rent of Rs. 16 a year which was fixed for 9 years and that it was agreed by the plaintiff in that lease that the defendants shall never be liable to ejectment by the landlord. The defendants further alleged that the tenancy sold by them to the plaintiff was a permanent lease-hold interest in homestead land containing building, tanks, garden, etc., and the plaintiff described his own right in the sub- lease as that of "a kaimi mourashi raiyat" and in that capacity he granted the sub-lease to the defendants and, therefore, the plaintiff was estopped from showing that he was (SIC) an occupancy raiyat and further that the Bengal Tenancy Act did not govern this case.

(3.) The learned Munsif held that the plaintiff was a raiyat with right of occupancy and that the defendants were under-raiyats and, therefore, the plaintiff was entitled to eject the defendants after service of notice under Section 49 of the Bengal Tenancy Act, which he found was duly served on the defendants. The Trial Court decreed the plaintiff's suit.