ASRABUDDIN Vs. ABDUL FAZAL DOCTOR

JUDGEMENT

(1.) This is an appeal by the defendants against a judgment and decree of a learned Subordinate Judge of Rangpur, affirming the decree of a learned Munsiff of that place, in a suit brought by the plaintiff-respondents for ejectment of the appellants from two plots (C.S. 2997 and 2999) within the Municipal area, on the ground that the appellants as their under-rayats, had used the land of the tenancy in a manner which renders it unfit for the purposes of the tenancy, within the meaning of Section 155(1)(a), Bengal Tenancy Act. The case of the respondents was that the purpose of the under-rayati was agricultural and that by digging ditches on the land and raising parts of it, notably by allowing two sub-tenants of the under- rayats to construct houses thereon, the land of the tenancy had suffered such misuse as to unfit it for the original purpose for which the korfa settlement was granted to defendant 14 and the predecessors in interest of the other defendants by the predecessors in interest of the plaintiffs.

(2.) The defence took a number of objections all of which were decided against them. Of the objections taken below, only two require notice here. They are : (a) that, the finding concerning the original -purpose of the tenancy of the appellants is wrong and (b) that, so far as plot 2999 is concerned, the suit is barred by limitation. Many other objections, some of them on legal grounds, were taken in the two lower Courts and also in the memorandum of second appeal to this Court, but Mr. Sanyal for the appellants has limited himself to the two just mentioned. This is one of those cases where by far the larger portion of the arguments has turned on something which was not mentioned in either Court at Rangpur and has indeed not found place in the memorandum of second appeal either. It is in fact the only point of substance, and though, as Dr. Sen Gupta for the respondents concedes, it cannot be overlooked, it is least regrettable that it was not placed before either of the Courts below for consideration and determination. There is no doubt that it should have been raised in the written statement and an issue founded on it.

(3.) To get rid of the other two points first: las regards (a), this seems to me to be purely a question of fact. The lower Appellate Court has treated the matter at great length and in considerable detail, giving full reasons for coming to the conclusion (in agreement with the 1st Court), that the purpose of both the raiyati and the under-raiyati was agricultural. Mr. Sanyal complains that due notice has not been given to the fact that at its inception the land was land which had emerged from the bed of a river which had here dried up and that it is now within the ambit of the Rangpur Municipality. But in fact both these points and a number of others have received due consideration. Charland is, as the learned Judge observes, ordinarily taken settlement of for the purpose of bringing it under the plough, so soon as the soil is fit for cultivation, while it has had to be conceded that in those days (about 1278 B.S. apparently) the land was not included within the Municipality. Apart from this, a large number of witnesses, many of them persons of position, deposed for the plaintiffs, whereas only 2 witnesses, apart from one of the defendants, came forward to support a case that the purpose of the rayati and the under-rayati tenancy (the allegation then was that the latter was a rayati with occupancy rights), was non-agricultural. Even D.Ws. 2 and 3 made statements not inconsistent with the agricultural character of the original tenancy, and it is not possible for this Court to interfere with the concurrent findings of the two Courts on this question of fact.