SHEIKH AKLU Vs. SHEIKH EMAMAN

JUDGEMENT

(1.) In this case I think the appeal must be dismissed. The lease was given on the 18th of January 1904 to the defendant s brother, one Sheikh Chandu, of a particular area of land which was 2 cottahs, and the rent was Rs. 12 a year. In 1909 Chandu died. From that time the defendant and the heirs of Chandu, and I think all his heirs, lived on the land in question; but apparently after the death of Chandu the land occupied by the defendant and the heirs, who according to the judgment of the lower Appellate Court were probably living with the defendant, was 21 cottahs and the rent that was paid was not Rs. 12 a year but was Rs. 15 a year, and the first question raised is whether the tenancy was a heritable one.

(2.) The learned Subordinate Judge has held that the tenancy was not a heritable one, and he bases his judgment upon the terms of the lease. That has been examined by my learned brother Mr. Justice Mookerjee and he agrees that there is nothing in the lease to show that the tenancy was a heritable one. Further than that, the fact that the area occupied after Chandu s death was different from that in the, lease and the fact that the rent was different from that which was specified in the, lease, lead me to come to the conclusion that the judgment of the learned Subordinate Judge that the holding was not a heritable one was correct Therefore, the position is this. The lease has come to an end; a new tenancy must have been created, and upon that two questions arise--with whom was the new tenancy created, and secondly, on what terms.

(3.) Now, upon the first point, the learned Vakil who has argued the case for the appellant urges that the tenants were not only the defendant but also the heirs who were co-sharer tenants, as he suggests, with the defendant. That point is really a question of fact and that has been decided by the learned Subordinate Judge against him, who has held that the defendant was the only tenant, and if it is necessary for me to express any opinion, I think that the learned Judge was perfectly right in coming to that conclusion, as far as I can judge from the materials before me: it is not necessary for me to go into detail; they are referred to in the two judgments that are before us. Therefore, the tenancy was between the plaintiff and the defendant.