SHAMSUDDIN BISWAS Vs. MOLANNESSA BIBI

JUDGEMENT

(1.) This appeal by the defendant No. 2 and some other defendants arises out of a suit for recovery of khas possession of certain lands. The facts are these. On Drajtulla had a tenure carrying a rent of Rs. 43-3 which was sold to one Raj Kumar and Sarala Sundari. After the sale he took a subordioate interest under the purchasers in the name of his wife defendant No. 8. In the year 1916 the plaintiff purchased the tenure at an auction-sale in execution of a decree for rent against Raj Kumar and Sarala Sundari. In 1917 certain creditors of the plaintiff's husband defendant No. 9 sold the tenure in execution of a money-decree against defendant No. 9 and purchased it, themselves. The plaintiff's husband defendant No. 9 had, on a certain date which is not material, purchased the interest in the land obtained by Drajtulla under the base from Rajkumar and Sarala Sundari taken in the name of his wife defendant No. 8. Defendant No. 2 purchased the interest of defendant No. 9 in that subordinate leasehold in execution of a; decree on the 20 March 1917, The plaintiff brought the suit out of which this appeal arises for recovery of khas possession of the lands on the ground that it was a non- transferable occupancy holding which the defendant No. 2 had purchased and he had no right to remain on the land, and secondly, that, assuming the interest purchased by defendant No. 2, was an encumbrance she had served notice under Section 167 of the Bengal Tenancy Act as an auction-purchaser of the superior interest and so entitled to recover possession.

(2.) The main defence was that the plaintiff had no interest in the tenure as she was merely a benamidar for her husband and the husband's interest having been sold by his creditors she had no right to maintain the suit; and secondly it was urged that the interest purchased by the defendant No. 2 was a mokarrari lease which was transferable and further that no notice had been served, under Section 167 of the Bengal Tenancy Act on him.

(3.) It is unnecessary to relate the various fortunes of the case in its preliminary stages. After it was remanded on a previous occasion by the lower Appellate Court it went back to the Munsif, who dismissed the suit. There was an appeal by the plaintiff and on appeal the learned Additional District Judge has held that the plaintiff was not the benamidar of her husband defendant No. 9 but had purchased the tenure in her own right and the execution sale against the husband held by the creditors did not affect her interest at all, and that the plaintiff, therefore, had the right to the property and was entitled to maintain the suit. With regard to the right of transferability the learned Judge observed that there was, as far as he could see, no dispute as to the jama being a non-transferable occupancy holding and he also held that there was evidence to prove due service of notice under Section 167 of the Bengal Tenancy Act.