EDON MOLLAH Vs. SHAIK BADAN

JUDGEMENT

(1.) This is an appeal by the defendant against the judgment of the learned Additional District Judge of Farid-pore, dated the 7th August 1914, affirming the decision of the Munsif of the Second Court at Bhanga. The suit was one for ejectment brought by a lessee claiming under the same landlord as the defendant. The question, therefore, is who has got a prior title. The obvious facts are these:

(2.) The defendant originally had a lease of, this land. There is no doubt about that. A litigation took place between him and the landlord. The case went up to tHe High Court and Rs. 300 was decreed, against the defendant and another person named Radir. According to the findings, terms of settlement were determined and these terms of settlement, it was found by both the lower Courts, were these: that if the defendant Edon paid to the landlord Rs. 150 in each out of the decretal amount, the landlord would re let two of the plots (that is, the land in contest in the present suit) to Edon. It was also found that the defendant complied with those terms, namely, that Edon paid Rs. 150 to the landlord in September 1907. Therefore the defendant Edon became entitled to a lease of the two plots in suit. He was already in possession of those two plots. Therefore having complied with the terms and having got a verbal agreerment and possession of the land, the defendant was in possession of the property as a lessee. It is quite true that he foolishly executed a kabuliyat which he said was in accordance with the terms which had been approved of by his landlord. That has been found against him by both the lower Courts. It was a foolish thing to do; but it cannot affect Edon s right to continue in possession of the land after he has paid the Rs. 150 to his landlord for that right. That was in September 1907. The plaintiff claims under a lease dated the 10th Ayrahan 1315, that is, in the year 1908. It is quite clear that the landlord was not entitled to grant that lease in 1908 to the plaintiff. He had already, by reason of the agreement followed by the acceptance of Rs. 150, constituted the defendant Edon as a tenant on the land. Moreover, the learned Judge of the lower Appellate Court considers that it is unlikely that the plaintiff is blameless in the transaction, by which I suppose he means that the plaintiff had notice of the actual agreement that had taken place between the landlord and the defendant Bdon. In any case, the defendant Edon being in actual possession of the land and enjoyment thereof the plaintiff, when he came to deal with the landlord, had constructive notice of the rights of Edon who was actually in possession and cultivating the land. In that view of the case, the plaintiff by his kabuliyat got nothing from the landlord. The present appeal is, therefore, allowed and the plaintiff s suit dismissed with costs both here and in the Courts below.

(3.) Shamsul Huda, J.--I agree.