BANGSHI BADAN HALDAR Vs. RATAN IJARDAR

JUDGEMENT

(1.) This appeal arises out of a suit for ejectment of the defendants. The plaintiff alleges that he purchased the jama which belonged originally to one Madhab Sardar in March 1908, the defendants are under-raiyats on whom he served notice under Section 49(6) of the Bengal Tenancy Act and that he is entitled to khas possession. Various pleas were raised in defence such as the plaintiff had not purchased any interest in the property; that he is not the sole owner of the holding and that the defendants were occupancy raiyats who had a heritable interest in the land and that no notice had been served under Section 49 of the Bengal Tenancy Act. The Munsif found all the questions against the defendants and passed a decree in ejectment. On appeal by the defendants the lower Appellate Court found all the questions except one against the defendants. The point on which the lower Appellate Court disagreed with the Munsif was with regard to the nature of the interest the defendants as under-raiyats had in the land in suit. The lower Appellate Court seems to have thought that the under tenancy might have been a permanent grant or at any rate a grant for an indefinite period and a lease was binding on the plaintiff and so he is not entitled to; eject the defendants on service of notice to-quit under the Bengal Tenancy Act. The defendants, however, did not produce any lease under which their right is supposed to have been created. It appears that there was a litigation between the predecessors-: in-interest of the plaintiff and the defendants in the year 1866. The defendants predecessor sued for possession of the land, on the ground that he had been forcibly ousted by his landlord and in support of his case it appears that he produced a lease. That lease, however,, has not been produced in this case. It is alleged by the defendants documents have been destroyed by cyclone. But then they did not claim any under-raiyati interest under any lease in the present suit. But they claimed that they were occupancy raiyats and the lease if produced certainly would not have supported their plea. The Additional District Judge seems to have drawn the conclusion which is not warranted in the absence of any evidence that that lease was a permanent grant. If the defendants claim any permanent right it was for them to substantiate it which they have not done. If the lease was for an indefinite period then under the ruling of the Full Bench in Raj Kumari Debi V/s. Barkatulla Mandal 12 Ind. Cas. 161 : 39 C. 278 : 14 C.L.J. 407: 16 C.W.N. 6 the plaintiff would be entitled to- seek for ejectment on service of notice under-the Bengal Tenancy Act. The decision, therefore, of the lower Appellate Court on this point is erroneous.

(2.) It was endeavoured on the part of the respondents, to support the decree of the lower Appellate Court on the ground that the plaintiff was not the owner of the entire jama. This point was found by both the Courts below in favour of the plaintiff. What happened is this? When the property was sold, the sale-certificate was taken in the name of the plaintiff and the pro forma defendant No. 5 and the plaintiff presented a petition in the execution case stating that the pro forma defendant would have a 4-annas share as he had promised to pay 4 annas share of the purchase-money. But the finding is that the pro forma defendant never paid his share of the purchase-money nor entered into possession of the property. Both the Courts below have found that the plaintiff had all along been in possession of the jama purchased and upon that finding it cannot be contended that the plaintiff is not the owner, of the entire property.

(3.) The judgment and decree of the lower Appellate Court are, therefore, set aside and those of the Munsif restored with costs in this Court and in the lower Appellate Court. Greaves, J.