EAKUBALI PANDIT Vs. MUHAMMAD ALI

JUDGEMENT

(1.) The suit in which this appeal has arisen was brought by the plaintiff, now appellant, to eject the defendants on the allegation that defendants are under-raiyats on whom notice to quit had been served under Section 49(b), Ben. Ten. Act and whose tenancy had been determined by such notice. The defence of the defendants, now respondents, is (i) that notice had not been properly served on the defendants; (ii) that they have acquired a right of occupancy by custom and are not liable to be ejected.

(2.) The Munsif held after a careful examination of the evidence that the service of notice to quit which was served on the defendants through Court in April 1920, had been satisfactorily established and points out that one of the defendants, Muhammad Ali does not come forward to depose that no notice was served on him. The Munsif refers to the entry in the Record-of- Rights in favour of the defendant to the effect that though under-raiyats the defendants have acquired a right of occupancy and states that the entry is proved to be wrong the moment it is shown that defendants are under-raiyats, and that the defendants have failed to establish that they have acquired a right of occupancy by custom and that on the other hand plaintiff has proved that there is no such custom.

(3.) The Munsif rested his decision on the further ground that plaintiffs brought a suit for ejectment against the defendants under Section 66, Ben. Ten. Act, and defendants, although appearing at the earlier stages of the suit, did not ultimately contest it with the result that an ex parte decree was passed. It is said that if the defendants were under raiyats with rights of occupancy the decree for ejectment could not have been passed and the decree in the said suit (No. 1826 of 1919) operates as res judicata on the question of the status of the defendants. The Munsif accordingly decreed plaintiff's suit.