MUNSHI SAFAR ALI MASTER Vs. ABDUL MAJID

JUDGEMENT

(1.) These two appeals arise out of one suit commenced by the plaintiff for khas possession of Plots Nos. 1158 and 1159 of the cadastral survey from the Defendants on the allegation that he took settlement of the lands from Waliulla in osat raiyati right of Plot No. 1158 which was in his khas possession and of Plot No. 1159 which was let out to one Arif Meah in meadi osat raiyati right, and that after his death it came into the khas possession of the landlord as it was an under-raiyati right and was neither heritable nor transferable. The defence is that she acquired an interest in the land in suit with reference to both the plots by virtue of her kobala from her husband Arif Meah in consideration of her dower. The first Court held that Plot No. 1158 was outside the kobala and that, in Plot No. 1159 Arif had only a meadi right and was holding the land from year to year and that the Defendant was never recognized by the superior landlord. The first Court decreed the suit with regard to both the plots. On appeal by the defendants the lower appellate Court dismissed the suit with reference to Plot No. 1159 and confirmed the decree with reference to Plot No. 1158. The plaintiff has appealed to this Court with reference to Plots No. 1159, his second appeal being numbered 1794 of 1924 while the defendants have appealed with reference to Plot No. 1158 and their second appeal is numbered 1997.

(2.) It has been contended before us that the decision of the lower appellate Court is wrong seeing that the Court finds the kobala in favour of the defendant who was mistress of Arif was without consideration, and that after Arif's death, although the defendant continued to be in possession for 11 years, there was no holding over and that Arifs lease expired after five years which was the time fixed in the lease, and the Court was wrong in holding that from the mere possession one can infer implied consent of the landlord to the tenant's holding over within the meaning of Section 116 of the Transfer of Property Act. In this connexion reference was made on behalf of the appellant to tie case of Ratan Lal Giri V/s. Farashi Bibi [1907] 34 Cal. 396. It has been agreed for the respondents on the other hand that the case is governed not by the Transfer of Property Act, but by the Bengal Tenancy Act and that the lease being a lease in favour of the plaintiff and being an under-raiyati lease for a period exceeding nine years the plaintiff acquired no interest as such lease is void and that consequently the plaintiff has no title to this plot. We are of opinion, however, that the case is governed by the Transfer of Property Act, and that the word raiyati does not necessarily indicate a jote within the meaning of the Bengal Tenancy Act. The record-of-rights shows that both the plots are began lands and we find that in 596, the subject-matter of this appeal, there is a house and that the defendants and Arif enjoyed it for a long time. This land being homestead laud within the Municipality the case cannot be governed by the Bengal Tenancy Act. We, therefore, overrule the contention of the Respondents in this behalf

(3.) Now let us proceed to consider the contention of the appellant that the case being governed by the Transfer of Property Act, and the lease haying expired after five years, there has been no holding over simply because the tenant has established his possession for a period of 11 years after the date of the expiry of the lease. Section 116 of the Transfer of Property Act says: If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessor, and the lessor or his legal representative accepts rent from the lessee or under-lessee or otherwise assents to his continuing in possession, the lease is in the absence of an agreement to the contrary renewed from year to year or from month to month according to the purpose for which the property is leased.