UMACHARAN BISWAS Vs. DEBENDRANATH PODDAR

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff in a suit for ejectment which has been dismissed by both the Courts below. It has been found that Niranjan Poddar, father of defendants Nos. 1 and 2, executed in favour of defendants Nos. 3-10 a kabuliyat on Assin 26, 1324 The said kabuliyat was for a term of ten years, i. e. up to Poms 133-1. In the kabuliyat it was stipulated that on the expiry of the month of Poms 1334, the tenant would vacate the lands without any further notice or demand on the part of the landlords. It has been found by the Courts below, and that finding has not been challenged before me, that Niranjan was a settled ryot of the village. On the death of Niranjan his sons, defendants Nos. 1 and 2, inherited his properties and are in possession of the property in suit. The plaintiff got a lease from defendants Nos. 3-- 10 on Falgoon 2, 1334 and it is on the strength of the title thus derived he has sued for possession.

(2.) Defendants Nos. 1 and 2 resist the plaintiff's claim, stating that they have occupancy rights. Their defence has prevailed in the lower Courts; hence the appeal to this Court.

(3.) The plaintiff sought to meet this defence by urging that the land in suit is the khamar land of defendants No?. 3 to 10, and that the father of defendants Nos. 1 and 2 having stipulated to give up possession with the expiry of the month of Pous 1334, the said defendants are bound to vacate. Before me Mr. Roy has placed the said second ground urged in the lower Courts in a different form. He says that the clause in the kabuliyat that the tenant would give up the land on the expiry of the month of Pous 1334 is a clause for surrender and that on the expiry of the month of Poms 1334 it must be taken that there has been surrender. I am afraid I cannot give effect to the said contention. The clause in question is an usual clause in a lease for a term, and would have had its normal effect but for 8.178 of the Bengal Tenancy Act. If the land is not khamar, and Niranjan a settled ryot of the village, which he in fact was, the plaintiff cannot get possession. Defendants Nos. 1 and 2 would have occupancy rights.