MADAR MONDAL Vs. MAHIMA CHANDRA MAZUMDAR

JUDGEMENT

(1.) The defendants Nos. 1, 2 and 3 were in occupation of the lands in dispute in this case under the plaintiffs. Whether they had a right of occupancy or not was a question raised in the pleadings and was answered by the Munsiff in the affirmative. The lower Appellate Court has not come to any distinct finding on the question.

(2.) The third issue raised in the case is "whether defendants Nos. 1, 2 and 3 have any jatnai right in the lands in suit and if so, whether the same right is transferable." The second part of the issue has been answered, namely, that the jamai right is not transferable. The first part has not been distinctly answered in the judgment of the lower Appellate Court. If we had agreed with that Court in the view it has taken of the effect of the transfer by defendants Nos. 1, 2 and 3 of their right as occupancy raiyats, there would be no necessity for a remand. But the lower Appellate Court not having come to any distinct finding on the question raised in the first part of the third issue, the case must go back for a distinct finding on the point, as we do not agree with it as to the effect of the transfer.

(3.) The main question, however, argued before us relates to the effect of the sale by defendants Nos. 1, 2, and 3 to defendant No. 4 and their obtaining a sublease from defendant No. 4. If the defendants Nos. 1 to 3 have a non transferable right of occupancy, are the plaintiffs entitled to a decree for khas possession not only against defendant No. 4, but also against defendants Nos. 1 to 3. The defendant No. 4, though he was the purchaser, did not put in any defence and he is not an appellant before us. The appeal has been presented by defendants Nos. 1 to 3 only, who are actually in occupation of the land. As regards defendant No. 4 there can be no doubt that he did not acquire any right by his purchase, if the right of defendants Nos. 1 to 3 was an occupancy right. The plaintiffs are therefore entitled to a decree for possession against defendant No. 4. But are the plaintiffs entitled to get khas possession by evicting the defendants Nos. 1 to 3?