BAHADUR AHMED MOULVI Vs. HEMANTA KUMAR ROY

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of khas possession of certain land. The Trial Court dismissed the suit which was decreed on appeal by the Subordinate Judge.

(2.) Defendant No. 1 has appealed to this Court. The facts found by the Subordinate Judge are that certain lands belonged jointly to two persons Baidya Nath and Golok in equal shares. There was a partition between the two co-sharers and the lands belonging to Golok's share were inherited by one Nityamoyi. She died sometime in 1916. Before her death she executed a kabuliyat in favour of the plaintiff dated the 11 of April 1907. It was stated in that kabuliyat that the lands of which she had been in possession was found on measurement to be in excess of the original jama and, therefore, the was altered and certain terms were arranged between the landlord and the Nityamoyi with regard to her leasehold property. The defendants came into possession by right of purchase from one Pitambari who was the widow of the daughter's son of Golok.

(3.) The plaintiff claimed possession of these lands on two grounds. First, that the transfer to the defendants was made in contravention of the terms of the kabuliyat executed by Nityamoyi and secondly, that the tenancy being that of an occupancy raiyat the purchasers had acquired no title as against the landlord as the occupancy right was not transferable by custom.