SATISH CHANDRA GHOSH Vs. DEBENDRA NATH DE

JUDGEMENT

(1.) This is an appeal under Section 15 of the Letters Patent from a decision of Mr. Justice Mukerji, dated the 24 March 1924. The suit out of which this appeal arises was brought by the plaintiff to eject defendant No. 1 from the land in suit as a trespasser. Defendant No 2 is the malik of the land and he granted a permanent lease of the land which consists of two plots to the plaintiff. The plaintiff went to take possession of the land and found the first defendant in occupation of the land. The first plot consists of two bighas and 13 cottas odd and the second of some 11 cottas and 15 chhataks. Both are situated in the town of Hooghly and the main contentions addressed to us in this appeal have been with regard to the first plot because I understand that the appellant admits that if he fails in his appeal with regard to the first plot he cannot succeed with regard to the second plot as his contentions with regard thereto are not so strong as with regard to the first plot The first Court dismissed the suit and held that the Transfer of Property Act applied and not the Bengal Tenancy Act. He held that the bigger plot had been in possession of the appellant or his vendors, for, some seven generations at a rent which had not been changed for a period of over 50 years and that the origin of the tenancy was unknown and he finally came to the conclusion that the rent was fixed in perpetuity and that the plots were "transferable. The lower Appellate Court held that the Transfer of Property Act did not apply, that the land was udbastoo bagat land which means "outside the bastoo" and that although the rent had not been changed for a long period as it had not been let out for residential purposes there was no presumption as to the permanency of the tenancy and decreed the suit. Mr. Justice Mukerjee in the appeal to him dismissed the appeal and I understand that the main complaint with regard to his judgment is with regard to his finding on the question of recognition. After coming to the conclusion that the finding of the lower Appellate Court on this point was not sufficient the learned Judge examined the evidence for himself and it is said that instead of so doing he should have remanded the suit for a further finding with regard to recognition.

(2.) Three points were urged before us in this appeal. The first is that the Transfer of Property Act applied and not the Tenancy Act and that accordingly, the appellant could not be ejected without notice. Secondly, it was urged that on the facts, namely, holding of the land for some seven generations at the same rent it should have been held that the rent was fixed in perpetuity and that, therefore, the holding was transferable. The third point is with regard to the Course pursued by Mr. Justice Mukerji which, it is stated, is unjustifiable.

(3.) So far as the first point is concerned the land is described in the plaint as udbastoo bagat land and it is urged before us that it formed part of the Compound of the bastoo and that the mere fact that vegetables and trees were grown there does not make it a horticultural tenancy but that it was really a part of the homestead and that the Judge in the lower Appellate Court was wrong in saying that the word "udbastoo" meant outside the bastoo and that it should have been held that these words connote adjoin a bastoo as a part thereof. It is necessary to turn to the finding of fact of the lower Appellate Court on this point, which to my mind, whether it is right or wrong, disposed of this question as the finding is binding upon us. That finding is that the tenancy was not for residential purposes but that the holding was a horticultural holding governed by the Bengal Tenancy Act and there is this further finding that the evidence does not show that it was let out or even used for homestead or for residential purposes. Having regard to these two findings by the lower Appellate Court we think that the first point is concluded by the findings of fact of that Court.