KHATER MISTRI Vs. SADRUDDI KHAN

JUDGEMENT

(1.) This appeal arises out of a suit brought for ejectment of the defendant.

(2.) The facts are these according to the allegations of the plaintiff. The defendant was the tenant of the plaintiff on a plot of land of 8 bighas. The plaintiff sued the defendant for rent in 1900. The defendant denied that the relationship of landlord and tenant existed between the plaintiff and himself of the plaintiff withdrew his suit. In 1901 the plaintiff sued again for rent; and the defendant again pleaded that he was not the plaintiff's tenant. The suit was tried out. It was found that the defendant was not the plaintiff's tenant and the suit was dismissed. The plaintiff now sues for ejectment of the defendant, and the defendant denies the plaintiff's title. He is not very specific in setting up his own title; but he does not allege that he is the plaintiff's tenant. The District Judge has therefore held, upon the authority of the case of Nil Madhab Bose V/s. Ananta Ram Bagdi (1898) 2 C.W.N. 755, which was followed in the case of Fayj Dhali V/s. Aftabuddin Sirdar (1902) 6 C.W.N. 675, that the defendant is now in the position of a trespasser and is liable to be ejected.

(3.) The defendant appeals; and on his behalf the case of Srimati Mattika Dassi V/s. Makham Lal Chowdhry (1905) 9 C.W.N. 928 has been cited; and the pleader for the appellant very candidly admits that he cannot distinguish the facts of this case from those in the case of Fayj Bhali V/s. Aftabuddin Sirdar (1902) 6 C.W.N. 675. Now, the learned Judges who deoided the case of Srimati Mallika Dassi V/s. Makham Lal Chowdhry (1905) 9 C.W.N. 928 do not expressly say that the cases of Nil Madhab Bose V/s. Ananta Ram Bagdi (1898) 2 C.W.N. 755 and Fayj Dhali V/s. Aftabuddin Sirdar (1902) 6 C.W.N. 575 have been wrongly decided. If they had been of that Opinion, it would have been their duty to refer the matter to a Full Bench. We understand that they distinguished the facts of these two cases from those in the case of Srimati Mallika Dassi V/s. Makham Lal (1905) 9 C.W.N. 928; and as we think, and the pleader for the appellant admits, that the facts of this case cannot be distinguished from those of the case of Fayj Dhali V/s. Aftabuddin Birdar (1902) 6 C.W.N. 575, it is clear that we are bound to follow the decision in that case and affirm the decision of the lower Appellate Court.