JALADHAR MONDAL Vs. AMRITA LAL

JUDGEMENT

(1.) These two appeals are by the defendant. They arise out of two suits for ejectment brought by the plaintiff on the allegation that the plaintiff was a ryot with regard to two holdings. The father of the defendant was his under-ryot. The under-ryot having died in 1921, the defendant had no right to remain on the land as the interest of an under-ryot is not heritable under the law. The defendant, therefore, is in the position of a trespasser and is liable to, be ejected.

(2.) The plea of the defendant was that his father was an occupancy-ryot and that the predecessor-in-interest of the plaintiff, namely, Jogendra Ghose, was a tenure-holder, and Jogendra having granted a permanent lease to the defendant's predecessors, he was estopped from, asserting that the defendant's predecessors were under-ryots and so the plaintiff who has obtained the interest of Jogendra by purchase at a sale in execution of a decree is also estopped from asserting that defendant's father was an under-ryot. The Munsif declared the interest of the plaintiff as a purchaser of the interest of Jogendra but dismissed the claim for ejectment and for mesne profits. The Subordinate Judge reversed the decision of the Munsif and held that the plaintiff is a ryot and, therefore, the defendant's father was an under-ryot under him and after the death of the defendant's father defendant had no right to remain on the land. He further held, reversing the decision of the Munsif, that the fact that the defendant had paid rent to the superior landlord on behalf of the plaintiff does not confer any title upon him. It is contended on behalf of the defendant by his learned vakil that the Subordinate Judge is in error in holding that the plaintiff was a ryot and that defendant's father was an under-ryot. He relies upon the fact that this tenancy has been in existence for a great number of years. It was said to be the holding of one Najib-ulla which appears from the maliki karcha of 1290, i.e., 1883. In 1291 this was described as a jote. A jote may mean the interest of an occupancy ryot or of a tenure-holder. This is not conclusive. Under the tenant Najibulla or his successor-in-interest Jogendra, one Mahima held the land as a pure cultivating tenant. Jogendra held the land in the name of his benamdar Jadav. Mahima's interest was sold in auction in execution of a rent-decree and it was purchased by Jogendra who let it out by accepting a kabuliyat from the defendant's father Gobinda. In that kabuliyat the interest of Jogendra was described as a ganti and it purports to have conferred upon Govinda a permanent lease. Under these circumstances there is no doubt that Jogendra would have been estopped from asserting his right as a ryot and to eject the defendant on the ground that his father was a mere under-ryot. The Subordinate Judge, however, has found that the interest of Jogendra was merely that of a ryot which was purchased in execution by the plaintiff and after his purchase the plaintiff had to get his name mutated in the sherista of the superior landlord on payment of an enhanced rent. The Subordinate Judge holds that Jogendra also had to pay enhanced rent, but the learned vakil for the appellant says that there is no ground for so holding. Assuming that it is so, still there is no doubt that the plaintiff had to pay an enhanced rent in order to have himself recognized by the superior landlord. If Jogendra's interest had been that of a tenure-holder, there would have been no necessity for this payment of enhanced rent for his recognition and this fact supports the finding of the Subordinate Judge that what the plaintiff purchased was the interest of a Con-transferable occupancy-ryot.

(3.) With regard to the question of estoppel it is only necessary, to point out that the plaintiff cannot be held to be bound by the estoppel of Jogendra as after having purchased at an execution sale he obtained a new title from the landlord at an increased rent.