DINANATH KUNDU Vs. JANAKI NATH ROY

JUDGEMENT

(1.) These two appeals by the defendants arise out of two actions in ejectment which were decreed by the Subordinate Judge. The plaintiffs brought the suits on the ground that the defendants were in possession of the leaseholds in temporary right under two leases evidenced by two kabuliyats, dated 21 September 1900 and 4 August 1903, respectively. The suit, out of which appeal No. 135 of 1925 arises, relates to the kabuliyat of the 21st September 1900. The parties to the two suits are the same. The questions on which the decision of the two appeals depends are also the same. There were two suits, only because there were two separate leaseholds under two separate leases. Notices were served, dated 20 Bhadra 1329 B.S., corresponding to 6 September 1922, and it was alleged that the notices were to terminate the lease at the end of the Bengali year on 30 Chaitra 1329 corresponding to some date in the middle of April 1923. The suits were brought on 20th September 1923. The Subordinate Judge decreed both the suits and various grounds were discussed in his judgment. In these appeals the appellants raise only two points for consideration and those two points are, in my opinion, the only two effective points in the appeals. The first and the most important point is as to the construction of the leases and the second question is as to the legality and sufficiency of the notices served on which, it is alleged by the plaintiffs, the leases were terminated. The leasehold properties and I need mentioned only one property and the observations would apply to the other also consist of a haut, bandar and bazar situated on the bank of a streamlet. The property originally belonged to a zamindar named Bepin Behari Roy. The predecessor-in-interest of the defendants first took a lease of the property on 7 April 1876 for a term of three years at a rent of Rs. 375 per annum. On the expiry of the term of that lease, other leases were taken for different terms from time to time by the same lessees from the landlord which it is unnecessary to mention in detail. The lease just before the one in question was dated 2 August, 1895. This was for a term of six years, which was to terminate at the end of the Bengali year 1307, corresponding to the middle of April 1901. Before the expiry of the term of that lease, the present defendants represented by one of them, Dina Nath Kundu, took the lease in dispute from Bepin Behari Roy, by executing a kabuliyat, in his favour, dated 21 September 1900. The kabuliyat with respect to the other leasehold property was executed by the same defendant in favour of the son and the administrator to the estate of Bepin Behari Roy, who had died in the meantime on 4 August 1903. This lease was executed with regard to some excess land lying contiguous to the land which was the subject-matter of the previous lease of 1900.

(2.) The whole question in dispute is whether by these leases the lessees obtained a permanent, heritable right to the leasehold properties subject to certain restrictions as to the use of the properties and with the liability of the rent (being variable under certain conditions or not. The plaintiffs in the suits acquired the interest which originally belonged to Bepin Behari Roy by virtue of a purchase at a sale in execution of a mortgage-decree on 25 April 1921, The contention on behalf of the plaintiff as that the defendants hold under a temporary lease or, at the utmost, under a lease from year to year which was terminable by six months notice to quit and, such a notice having been served upon them, they have no right to remain on the land. The plaintiffs are, therefore, entitled to khas possession by ejecting the defendants. We have thus to see which of the contentions should prevail. The contention of the plaintiffs found favour with the Subordinate Judge. The most important provisions in the lease are these: I had been till now in possession of the haut, etc., by taking a temporary miadi ijara settlement of the same and realizing rents. I prayed to yon for having granted a bemiadi settlement of the haut, etc...and you, on receiving a salami of Rs. 3,500 from me and fixing the annual rent at Rs. 800, granted my prayer and made with me a bemiadi settlement of the haut.... I appear before you and, agreeing to pay a rent of Rs. 800 per annum, I execute this deed of bemiadi kabuliyat.

(3.) If due to my default or neglect of duty the conditions of the haut deteriorate or are likely to deteriorate instead of being improved, you shall forthwith be able to take khas possession by ejecting me from the haut, etc., and no objection on the part of myself and my heirs shall be entertained.