RAJANI SUTRADHAR Vs. BAIKUNTHA CHANDRA SAHA

JUDGEMENT

(1.) This appeal is on behalf of the defendants in a suit instituted by the plaintiffs for ejectment after service of a notice to quit. The defence was that the lands in suit had been let out to them for agricultural purposes and they, the defendants, have acquired occupancy rights and their further defence was that the notice to quit had not been served upon them. For the purpose of proving that the letting was for agricultural purposes the defendants adduced evidence that they raised in the years past crops upon a part of the lands included in the tenancy. Witness No. 5 examined on behalf of the defendants, however, admitted that the defendants had taken the lands for the purpose of residence. The letting was about 50 years before the suit : He also proved that for about 25 years crops are being raised in the southern portion of the lands in suit.

(2.) The learned Munsif explained away the statement made by this witness that the letting was for residential purposes but the learned Subordinate Judge has held that the evidence of this witness on this part of the case is unambiguous. He has found that the purpose of the tenancy was non-agricultural and this finding, in my judgment, cannot be attacked in second appeal.

(3.) When the letting was for non-agricultural purpose, a subsequent user for agricultural purposes would not affect, in my judgment, the incidents of the tenancy. It would still be regarded as a non-agricultural tenancy although after the creation of the tenancy the tenants may be using a part of it for agricultural purposes.