NORMADA SUNDARI DEBI Vs. TARIP MOLLAH

JUDGEMENT

(1.) THE plaintiff-appellant sued to recover khas possession of certain lands as included in her gauti tenure, which she purchased in execution of a decree for arrears of rent, and for ejectment from the same of the defendants on the ground that their holding of the tenure was an incumbrance which she was entitled to annul. THE tenure was purchased by the plaintiff on the 27 April 1903 and her purchase was confirmed on the 30 June 1903. She obtained possession on the 24 November 1903. On the 17 April 1904, a notice under Section 167 of the Bengal Tenancy Act was served on the defendants and the present suit was instituted on the 3 October 1904. THE defendants claimed a permanent tenancy under jamai right in the land, and also plead ed that a certain portion of their holding was a protected interest as containing houses, gardens and tanks. THEre was a further question whether the mother of the tenants who were sued, who was admittedly the proprietress of a 2 anna share could be ejected without a proper notice having been issued on her but simply on the notice issued on the registered tenants by the plaintiff. THE Munsif held that, with the exception of the land covered by the garden, homestead and tanks and with the exception of the 2 anna share of the mother of the defendants, the plaintiff was entitled to get khas possession and he accordingly gave her a decree annulling the tenancy as an incumbrance. On appeal, the lower appellate Court modified the decree of the Court of first instance in so far as it awarded khas possession to the plaintiff but held that the plaintiff was by her purchase entitled to recover rent from the defendants in respect of 14 annas of the holding. THE plaintiff has appealed and the first point which has been taken in support of the appeal is that the Subordinate Judge has erred in law in placing the onus on the plaintiff to prove that the settlement under which the defendants held the land was an incumbrance. It is contended that the onus lay on the defendants to prove that their tenancy was not an incumbrance. It has been argued that the decision of this Court, on which the lower appellate Court has relied, Gobind Nath Shaha Chowdhuri Trustee to the Estate of Parshadanga Chowdhuri V/s. G.M. Reily 13 C. 1, was in a case falling under Section 66 of Act VIII of 1869 and that it has been modified in subsequent cases; and the cases of Mothura Mohun Ghose Mondul V/s. Akhoy Kumar Mitter 15 C. 557 and Mahomed Kazem V/s. Naffar Chundra Pal Chowdhry 32 C, 911 have been relied on. THE case of Mothura Mohun V/s. Akhoy Kumar 15 C. 557, however, really turns on the interpretation of Section 37 of Act XI of 1859, the provisions of which are not on all fours with those of the Bengal Tenancy Act and the decision in Mahomed Kazem V/s. Naffar Chandra Pal Chowdhry does not appear to have much application to the present case. THE plaintiff, in this case, sues to eject the defendants on the ground that their tenancy is an incumbrance created on the gauti tenure. Section 161 defines an incumbrance, as used with reference to a tenancy, to mean any lien sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein and not being a protected interest as defined in Section 160. THE law which gives the plaintiff power to annul such a tenancy as an incumbrance seems to us to require that the person seeking to annul the tenancy on that ground shall make out a case that the tenancy is, in fact, an incumbrance within the meaning of the section. THE case of the defendants was that their tenancy had been created long before the gauti tenure was settled. In those circumstances, it certainly rested on the plaintiff to prove that the tenancy which she sought to annul was one which had been created after the gauti tenure was brought into existence. If the case of the defendants was true that they were in possession before the creation of the tenure, certainly the tenancy would not be an incumbrance which the plaintiff would be entitled to annul. THE onus would not rest on the defendants to prove that their tenancy existed before the creation of the gauti tenure. We may observe that the lower appellate Court has found that the plaintiff has signally failed to prove that the tenancy of the defendants was created after the creation of the gauti tenure. We hold, in these circumstances, that the lower appellate Court was right in holding that the suit for annulment of the tenure and for khas possession must fail. It is not necessary for us, in these circumstances, to discuss how far the alleged interest of the widow was affected by the sale. THE right of the plaintiff by purchase to the gauti tenure is not disputed but the claim for khas possession by annulment of the tenancy must be dismissed and the plaintiff will only be entitled to recover rent from the defendants. THE result, therefore, is that the appeal is dismissed with costs.