SHADAYA CHANDRA SHAHA Vs. KALINATH SAHA

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for ejectment utter six months notice to quit. The plot of land in question measures some 4 cattahs. The defendant s case was that his tenancy did not consist of only this plot of 4 cattahs but that it was one of 7 1/2 cattahs and that it was his ancestral tenancy. The plaintiffs case was that a portion of the whole holding, namely, 3 1/2 cattahs, being the northern portion, was the ancestral bari of the defendant and that the defendant s father took a settlement of the 4 cattahs on the south some 20 or 22 years before the suit. The first Court found that there was no evidence as to this settlement and it dismissed the suit. On appeal the learned Subordinate Judge, after stating that there was no evidence as to certain matters which might affect this question of separate settlement, came to the conclusion that originally the whole of the 7 1/2 cattahs formed one holding, that after many years there had been a division of the holding and that now two separate holdings have been formed out of the original holding of 7 1/2 cattahs. His finding is in the following terms: "The only reasonable probability is that the defendant s portion of the bari formed a separate jama by mutual consent. Whatever might have been the nature of the bari over 20 years ago, "it was not one and was not treated as one from sometime before 13C9 and the southern portion of the bari, that is, the 4 katta bari in suit, formed a separate jama of the defendant, under the plaintiffs,"

(2.) The first point taken in appeal is that whatever arrangement the tenants of the original 71/2 cattuhs might have come to between themselves, there can be no formation of two separate holdings without the consent of the landlord; and of that consent there is no evidence, and the learned Vakil points to the passage in which the learned Subordinate Judge says that there is no evidence of realisation of rent from the defendant. It seems to me that the passage, which I have quoted above, amounts to a finding not merely of an arrangement between the owners but of an arrangement with the consent of the landlord.

(3.) There is evidence which might indicate, consent on the part of the landlord in the fact that sometime previously he sued the defendant for rent in respect of the smaller plot, although the final result of that suit was that it was decreed on the defendant s admission as to the rate of rent, the defendant declaring that the holding was one of 7 1/2 cattahs . The first point taken in my opinion fails.