RASH BEHARI MANDAL Vs. HEMANTA KUMAR GHOSE

JUDGEMENT

(1.) This appeal arises out of an action in ejectment, and is on behalf of some of the defendants in suit No. 55 tried by the Subordinate Judge of Khulna. The facts are these : There is a Sayedpur Trust Estate, which has got the zemindari interest. A patni was created consisting of certain mouzahs; within that estate in 1821 in favour of two persons named Gopi Roy and Kali Roy. Within the patni there was a large-tract of jungle and apparently it was not included within any of the mouzahs. In 1843 some of the persons, who held the property in darpatni interest executed a lease of about 600 bighas of jungle land under certain terms in favour of two-persons, named Ramjiban Jotedar and. Ram Sundar Mandal. Sometime after that the patni interest appears to have come into the possession of certain Boses. On the 9th October 1879 these Boses granted a lease of 600 bighas of patit and jungle lands excluding 400 bighas of dhap lands in favour of four persons, who may be called Jotedars and Mandals. There was also a stipulation that the 400 bighas excluded, which was described as dhap lands, might be taken possession of by the lessees after reclaiming those lands at a certain rate of rent. The provision with regard to rent was in the usual, manner of progressive rent from time to time, and stipulating that the rent would be at a certain rate from the year 1304, that is 1897. This patni was put up to sale under Regulation 8 of 1819 on the 15 May 1914, and was purchased by the plaintiffs. After their purchase they served notice on all persons, who were the descendants of the original lessees under the lease of 1879, and all those who had derived title under these lessees, or their representatives. A large number of persons was impleaded as defendants. Most of them came to an agreement, with the plaintiffs and compromised the suit. The appellants before us fought, out the suit in the Court below, and a decree for ejectment has been made as against them.

(2.) The case of the plaintiffs was that under the provisions of Section 11, Regulation 8 of 1819, they were entitled to eject the-defendants and to recover khas possession of the lands in question. Various pleas were taken in defence but the main defence was that the lessees under the lease of 1879 were khudkhast raiyats and therefore protected under the third clause of Section 11 of the regulation. Secondly, even if it be considered that they were not khudkhast raiyats they acquired right of occupancy as raiyats by holding, the lands for more than 12 years and consequently they are protected from ejectment under the provisions of the Bengal Tenancy Act, notwithstanding the provisions of Section 11, Regulation 8 of 1819. Another plea was sought to be raised that the plaintiff had acquired no right by virtue of the regulation sale, as certain steps were not taken under the regulation.

(3.) Besides those pleas, other pleas were taken and a large number of issues was raised in the Court below. It is unnecessary to mention these as they are absolutely immaterial for the purposes of the appeal. The Subordinate Judge held that the defendants were not khudkhast raiyats. Secondly, he held that not being khudkhast raiyats, they are liable to ejectment, as Clause 3, Section 11 of the regulation does no t protect them. He further held that the defendants were tenure-holders, and their interest was an incumbrance coming under Clause 1, Section 11 of the regulation, and therefore they have no right to remain on the land after the patni sale. He also held that the defendants could not challenge the validity of the patni sale collaterally by way of defence in the present suit. On these findings he made his decree in ejectment. Twelve of the defendants have appealed to this Court. One of them, defendant 18, is one of the representatives of the original lessees under the lease of 1879. Others claimed under various sub-leases from the lessees or from the sub-lessees under those lessees. It is unnecessary for our purpose to state the origin of the title of those subordinate holders.