RAJENDRA NATH CHATTERJEE Vs. MOHESHATA DEBI

JUDGEMENT

(1.) In the suit out of which this appeal has arisen the plaintiff sued for khas possession of 4 bighas pi land on the ground that the tenant who transferred them had no transferable interest in them and the transferees were mere trespassers.

(2.) The plaintiff's case was that the defendant No, 3, Haridas Ghose, held as under raiyati under her in respect of the land in suit and had no transferable interest in it. The defendant No. 3 executed two mortgages in respect of these lands, one in favour of defendant No. 7 and the other in favour of defendant No. 8. Their united mortgages covered the whole of the lands in suit. Both these persons sued on, their mortgages and obtained decrees and purchased the lands. Hence the plaintiff contended that the defendant No. 3, the original raiyat, had abandoned the lands and that she was entitled to re-entry. The defendant's case was that the plaintiff was not a raiyat but a tenure-holder, that he was a raiyat at a fixed rate of rent and further that the entire holding had not been purchased by defendants Nos. 7 and 8 but that 2 cottahs of this holding was still in the possession of the original raiyat Haridas Ghose and, therefore, there had been no abandonment.

(3.) The Court of first instance held that the plaintiff was a tenure-holder and the defendant was an occupancy raiyat and for reasons which I need not detail he held that the plaintiff was not entitled to khas possession as against defendant No. 3, but that he was entitled to khas possession against defendants Nos. 1, 2, 4, 5, 6, 7 and 8. The suit was decreed in the Court, of first instance on the 18 of August and on the 31 of August defendants Nos. 7 and 8 appealed to the District Court. The sole respondent in that appeal was the plaintiff. Defendant No. 3 was not a party to the appeal. On the 30 September the plaintiff filed certain cross- objection against defendant No. 3 who was not a party to the appeal and also along with this cross-objection filed an application asking the Court to make defendant No. 3 a party to the appeal and this was done on the 18 of April 1922. The lower Appellate Court held that defendant No. 3 was only an ordinary occupancy raiyat and was not as he claimed a raiyat at fixed rate and had no transferable interest in the property. He further held that defendant No. 3 had abandoned the holding and that, therefore, the plaintiff was entitled to eject defendant Nos. 7 and 8 who were only trespassers. He, therefore, rejected the appeal of defendants Nos. 7 and 8 and decreed what he described as the cross-appeal of the plaintiffs. The result being that the whole of the plaintiff's suit was decreed and it was held that he was entitled to khas possession of the entire plot by ousting all the defendants therefrom.