MALAYA KUMAR MAZUMDAR Vs. FAKIR MOHAMMAD SARKAR

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff, whose suit was dismissed by both the Courts below. The main question raised in the suit was as to the nature of the interest held by the plaintiff in certain lands in a mouza called Kaibartagram, whether it was a darmokorari interest, as alleged by the plaintiff, or a darpatni interest, as alleged by the contesting defendant. That again depended on the question whether a tenancy which had been created in the year 1253 B.S., by Ex. 9 was a patni taluk or a mourashi mokorari grant in respect of the disputed lands. The grantor of the lease, Ex. 9, was one Radha Nath Lahiri, and, on the face of the document, it purported to be a patni lease. It comprised the lessor's interest in respect of a 7 as undivided share in two toujis therein mentioned and of a similar share in certain Brahmottar lands. It is these Brahmottar lands with which we are concerned in this suit. The plaintiff's case is that though the lease purported to foe a patni grant even in respect of these Brahmottar lands, these lands could not, under the law, be the subject-matter of a patni grant. The interest created in favour of the lessee in respect of these lands was, therefore, a mere mourashi mokorari tenancy. It was pointed out that under the provisions of the Badshahi Grants Regulation (Regulation 37 of 1793, Section 2, Clause 5) the creation of a patni in respect of a lakheraj was prohibited, and this was also clear from the terms of the preamble to the Patni Regulation 8 of 1819.

(2.) The contesting defendant was the purchaser of the superior tenure, under which the plaintiff or his predecessor held his tenancy, at a sale in execution of a rent decree. Admittedly he had taken no steps after the sale to annul any encumbrance under Section 167, Bengal Tenancy Act, but his case was that as the tenancy he had purchased was a patni taluk, the plaintiff's interest which was subordinate thereto stood cancelled as a result of the sale under Section 11, Patni Regulation. Both Courts have found that though no notice under Section 167, Bengal Tenancy Act, had been served on the plaintiff or his predecessor, the contesting defendant had otherwise signified his intention to annul the plaintiff's interest, and it accordingly stood annulled.

(3.) The plaintiff brought the suit for a declaration, first, that his interest was that of a darmokoraridar and not a darpatni interest, and secondly, that his interest had not been annulled. It was further prayed that certain decrees for rent which the contesting defendant had obtained against the cultivating raiyats on the footing that the intermediate interest of the plaintiff had been extinguished were void and inoperative.