AHMAD ALI Vs. MALHIUL ALAM CHOUDHURY

JUDGEMENT

(1.) These five appeals arise out of five suits which were heard together in the first Court. These appeals from those decisions were also heard together in the lower Appellate Court. The plaintiff-respondent in these appeals is the transferree of Sherjan Khan who purchased an estate at a sale for arrears of revenue under Act XI of 1859 on the 4 May 1908. The plaintiff brought these suits to recover khas possession with mesne profits of the lands held by the different principal defendants in each suit as tenure-holders under the proprietor whose interest was sold at the revenue sale. All the suits were dismissed by the Munsif who tried them. On appeal these decisions were reversed and the suits decreed. Against these decrees the principal defendants have preferred these appeals to this Court.

(2.) At the hearing of these appeals before us only three points were urged (1) That the defendants are occupancy raiyats and, therefore, not liable to be ejected from their holdings. (2) That if they are tenure-holders they are protected under the record exception to Section 37 Act XI of 1859. (3) That the mesne profits claimed for the period before the plaintiff's purchase on the 14 November 1919 are not recoverable by the plaintiff.

(3.) On the first point the Record of Rights is against the appellants and both the lower Courts held that the presumption arising in the plaintiff's favour from the entries therein had not been rebutted. The appellants claim to be raiyats and not tenure-holders depended on their being able to prove descent from the persons who were recorded as cultivating the land at the time of the Maghi Survey. The finding that they could not prove this descent is one of fact which we must accept in second appeal.