KRISHNA KANTA GHOSE Vs. RAJESWAR GHOSH

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff sought to eject the defendants from an under-raiyati holding under Section 48-C, Ben. Ten. Act. The main defence of the defendants was that they had been in continuous possession of the land in suit for more than 12 years and this defence was accepted in the Court of first instance. The lower Appellate Court held that the period of 12 years continuous possession by which an under-raiyat is protected from ejectment on the grounds specified in Clauses (c) and (d) of Section 48-C, Ben. Ten. Act, must exclude the period covered by the ejectment notice and in this view of the case, the learned Subordinate Judge reversed the decision of the first Court.

(2.) It appears from the facts as stated in the judgments of the Courts below that on 2nd May 1920, Kisto Bandhu Ghose, the father of the present defendants died. It had been contended in the first Court on behalf of the defendants that the possession of Kisto Bandhu Ghose in respect of the disputed land before his death should accrue to the advantage of the defendants in order to give them the benefit of the Proviso to Section 48-C, Ben. Ten. Act. But in this Court no argument was advanced before me on this point, in view of the fact that the learned advocate for the appellants admits that the legal position would be doubtful with regard to the possession of the disputed land prior to the death of Kisto Bandhu Ghose and he bases his case entirely on his argument to the effect that the lower Appellate Court's interpretation of Section 48-C (d), Ben. Ten. Act, is wrong.

(3.) It would appear that the plaintiff served the defendants with an ejectment notice on 20th January 1932. This notice admittedly expired at the end of the following agricultural year, namely, on 17 April 1933, and the suit, out of which this appeal arises was instituted on 8th May 1933.