JADAB SARDAR Vs. GOBINDA CHANDRA MONDAL

JUDGEMENT

(1.) In this case I think that the appeal should be dismissed inspite of the argument which Dr. Dwarka Nath Mitter has addressed to us. The plaintiffs obtained a settlement of the land from the admitted landlord in April 1911. Defendants Nos. 1 and 2 who are appealing to this Court obtained their title to the interest, which they now have, under defendant No. 4. Defendant No. 4 was a person who had the original right of occupancy and he sublet it to defendants Nos. 1 and 2; the plaintiffs are third persons; no objection can be taken to the proceeding by defendant No. 4 in subletting which created an interest in defendants Nos. 1 and 2-the interest of an under-raiyat. Then defendant No. 4 sold his right as occupancy raiyat to defendants Nos. 1 and 2. It turns out that the occupancy right was that of a non-transferable occupancy holding which the defendant No. 4 had no power to assign to defendants Nos. 1 and 2, and Dr. DwarkaNath Mitter does not claim on behalf of defendants Nos. 1 and 2 as transferees under that sale, but he claims on behalf of them under the sub-letting, whereby he says they became under-raiyats; and that, inasmuch as they became under-raiyats, they were entitled to notice under Section 49 of the Bengal Tenancy Act, and that such notice not having been given the present suit would not lie as it is a suit which comes within Section 49, being a suit by the landlord claiming to eject an undev-raiyat. I do not think that that argument can be maintained, for two reasons. First of all, I do not think that, after the sale by defendant No. 4 of his interest to defendants Nos. 1 and 2, they were in the position of under raiyats, because defendant No. 4 having transferred or having purported to transfer his interest to defendants Nos. 1 and 2 left the land and disappeared altogether. The result of that transaction was equivalent to abandonment by defendant No. 4 of the whole of his interest. Then the position was that there was the landlord and the defendants Nos. 1 and 2, and there was nobody between them. As it was put during the course of the argument the landlord and the defendants Nos. 1 and 2 were face to face. Those are the facts of the case. Inspite of Dr. Dwarka Nath Mitter s ingenious argument I cannot understand how, after that transaction had taken place, defendants Nos. 1 and 2 any longer occupied the position of under-raiyats and I think that is sufficient reason to justify the dismissal of the appeal.

(2.) But I think there is also another reason, viz., that according to the decision in the case of Badan Chandra Das v. Rajeswari Debya 2 C.L.J. 570 Mr. Justice Ghose, who delivered the judgment of the Court, said at page 572, " Section 49 of the Bengal Tenancy Act which has been referred to has no application to this case. That section refers to a suit in ejectment brought by the immediate landlord of the under-raiyat." Now, if Dr. Dwarka Nath Mitter s argument upon the other point is to be given effect to, namely, that the intermediate tenure must be taken as being abandoned for all other purposes except for the protection of the under-raiyati, then this action is not brought by the raiyat who was the immediate landlord of the under-raiyat, and that is an additional reason why the notice specified by Section 49 need not be given.

(3.) For these two reasons I think that the judgments, which according to the learned Vakil for the appellants, have been consistently against them, are right judgments, and this appeal should be dismissed with costs. Mookerjee, J.