SAMIULLA Vs. NIL MAMUD

JUDGEMENT

(1.) Two points have been raised in this appeal on behalf of the defendant-appellant. The plaintiff sued the defendant for arrears of rent at a certain rate with regard to a piece of land in the possession of the defendant. In the alternative, he claimed that, if the tenancy was not proved, he might be allowed damages against the defendant for use and occupation of the land. The defendant denied the relationship of landlord and tenant and his case was that the land never belonged to the plaintiff, but was his own land. The plaintiff claimed title by virtue of an auction-purchase in execution of a decree on a mortgage alleged to have been executed by the defendant's father. The plaintiff's case was that after the auction-purchase he had been in possession of the land and that the defendant came into occupation in the year 1325 B.S. by virtue of a contract of lease. The defendant's plea was that the piece of land had never been mortgaged by his father, that assuming that it was mortgaged and sold, in execution" of the decree, the defendant or his father never gave up possession of the land but remained on it all along and that, if the plaintiff had derived any title by virtue of the auction-purchase, that title was barred by limitation. The defendant further said that, as the plaintiff had no subsisting title, he was not entitled to the property. The defendant also denied the contract of tenancy and pleaded that the plaintiff's suit was liable to be dismissed.

(2.) Two issues were raised in the trial Court : first, as to whether there was a relationship of landlord and tenant between the parties; and, secondly, whether the plaintiff had the right to get any damages for use and occupation of the land. The trial Court found both the issues against the plaintiff and dismissed the suit. The plaintiff appealed and only those two points were raised for decision before the learned Subordinate Judge. The Subordinate Judge held that the plaintiff had a subsisting title to the property; but he accepted the finding of the Munsif that the contract of tenancy set up by the plaintiff had not been proved, and, therefore, he held that the plaintiff was not entitled to recover rent on the basis of the alleged settlement but that he was entitled to damages for use and occupation; and upon that view, he calculated the amount of damages and awarded n decree in favour of the plaintiff. Against that decision, the defendant has preferred this appeal.

(3.) A preliminary objection was taken on behalf of the plaintiff-respondent that the appeal was not maintainable under the provisions of Section 153 of the Bengal Tenancy Act as no question relating to title to land as between parties having conflicting claims thereto had been decided. It appears, however, that there was a question of conflicting title between the plaintiff and the defendant as the defendant claimed the property to be his on the ground that it was never conveyed by way of mortgage by his father, and that even if it was, any title acquired by the plaintiff was barred by the statute of limitation. This second appeal, therefore, is maintainable.