PANKAJINI DEBI Vs. SATISH BEHARA BUNA

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff whose suit for ejectment has been dismissed. It is admitted that the land in suit which is a piece of homestead land together with other arable lands formed the raiyati holding of one Rati Kanta Buna. The raiyati holding of Rati Kanta Buna comprised an area of 3 bighas 12 cottas of land bearing a rental of Rs. 1-8-0 per year. It comprised of two plots of land, one homestead plot and the other consisting of agricultural lands. When this raiyati holding was created, there is no evidence. It may be that it was created long before the passing of the Bengal Tenancy Act. Rati Kanta had let out the lands to one Narendra Nath Bishnu. Narendra Nath Bishnu's tenancy comprised both agricultural lands and the homestead. It was an agricultural lease. There is no evidence when this under raiyati in favour of Narendra Nath Bishnu was created. It may be before the passing of the Bengal Tenancy Act. The plaintiff has purchased the interest of Narendra Nath Bishnu. After his purchase the plaintiff found the defendants to be in occupation of the homestead portion as tenants under Narendra Nath. He instituted a suit against the defendants for possession and on April 30, 1923, a consent decree was passed. The defendants recognised the title of the plaintiff and agreed to vacate the land which was the subject-matter of the suit. In pursuance of that decree the plaintiff took possession through Court. On January 8, 1926, however, the defendants took a fresh lease of 6 cottas out of the aforesaid 12 cottas of land which is the homestead. This lease is Ex. 2. In the lease it was provided that the tenants will quit the land when required by the landlord. In a subsequent rent suit between the parties this lease was established and held, to be binding on the plaintiff and the defendants. The plaintiff instituted the present suit in ejectment after giving the defendants a notice to quit under the provisions of Section 106 of the Transfer of Property Act. One of the defences taken was that the notice is invalid inasmuch as the incidents of the tenancy created by the lease Ex. 2 is governed by the provisions of the bengal Tenancy Act and the notice which has been given is accordingly not a valid notice. The lower Appellate Court has held that the incident of the tenancy are governed by the provisions of the Bengal Tenancy Act and in that view of the matter has held the notice to be insufficient and has dismissed the plaintiff's suit. It is admitted that if the incidents, of the tenancy are to be governed by the provisions of the Bengal Tenancy Act, then on this ground alone the judgment passed by the learned Subordinate Judge would be a correct judgment.

(2.) Exhibit 2 does not define the purposes of the lease. But it is admitted that the subject- matter of the demise is a piece of homestead land. From the fact that the demised premises is a piece of homestead land used for the purpose of residence the plaintiff has argued that the provisions of the Transfer of Property Act is applicable. Two other points have been taken before me. They are first that the question as to the nature of the tenancy created by Ex. 2 is concluded by constructive res judicata by reason of the consent decree passed on April 30, 1923, and by reason of the decree passed in the rent suit brought on the basis of Ex. 2. The second additional ground taken before me is the ground of estoppel. Now, the question of res judicita was not raised in any of the Courts below. How the compromise decree passed on April 30, 1933, would be res judicata on the nature of the tenancy created by Ex. 2 it is difficult to say. The lease evidenced by Ex. 2 had been created about 3 years after the date of the said consent decree. With regard to the question of res judicata raised on the basis of the decree passed in the rent suit there is this difficulty that the point was never taken in the Courts below. The pleadings of that suit are not on the record. It would be, therefore, wrong on my part to allow the said question of res judicata to be mooted for the first time in second appeal. I accordingly overrule the said point.

(3.) With regard to the ground of estoppel it seems that an issue was framed by the Court of first instance, being issue No. 3. But the learned Munsif remarks that that issue was not pressed before him. Moreover, there is nothing on the record to show how the principle of estoppel could be invoked in the case before me. I accordingly hold that there is no substance in this ground also.