TOULI SAMAL Vs. SUKA BEWA

JUDGEMENT

(1.) It will be convenient to deal with these two appeals by one judgment because although they arise out of different suits, and argument was heard separately in the two appeals, both the appeals raise similar questions regarding the interpretation and effect of Section 236, Orissa Tenancy Act.

(2.) In S.A. No. 25 of 1942 the plaintiffs-appellants sued to eject defendant 1 from certain properties on the expiry of a lease for nine years executed by the plaintiffs in favour of defendant 1 on 12-6-1931. The history of the land is as follows. One Durga Charan was an occupancy raiyat and was as such recorded as in possession of 11 acres. He purchased the tenure-holder's interest in 08 acres of that property. Defendant 1 of the present suit is his mother and on his death she inherited his properties. In 1923 defendant 1 executed a deed of gift in favour of her daughter, defendant 2, who in 1931 sold the property to the plaintiffs and at that time the lease was granted to defendant 1. The defence to the suit was first that the plaintiffs had acquired only the tenure-holder's interest while the raiyati interest remained with defendant 1. This defence has been overruled by the lower appellate Court. The second defence was that defendant 1 had fraudulently been induced to enter into a contract of lease and the agreement was really on(c) for a permanent lease. This also the lower Courts-have disbelieved. A further defence was raised, namely, that defendant 1 was a raiyat and that the property now in suit is her homestead and, therefore, under Section 236, Orissa Tenancy Act, she is not liable to ejectment. Both the lower Courts have accepted this defence. Hence the appeal to this Court.

(3.) In S.A. No. 51 of 1912 the plaintiff appellants sued to eject the defendants as under-raiyats. Their suit was decreed by the trial Court and the defendants appealed with reference particularly to one portion of the land which they claimed was their homestead and they contended that as they were occupancy raiyats of other lands they were protected by Section 236, Orissa Tenancy Act, from ejectment from that portion of the land in suit. This contention was accepted by the lower appellate Court.