DEB NARAIN DUTT Vs. BAIDTA NATH MODAK NAPIT

JUDGEMENT

(1.) The plaintiff in this suit seeks to establish his title in and to obtain possession of an eight anna share in certain lands described in the schedule to the plaint. The plaintiff purchased the 8 anna maliki right on this land in 1268 B.S. The land in suit was then in the possession of one Kasi Nath Napit and he executed a kabuliat in favour of the plaintiff in Phalgun 1268. After the death of Kasinath Jadu Napit his nephew succeeded to his rights in this land and on 17 of Baisak 1296 he sold the land to the defendant. The plaintiff now seeks to eject the defendant from the land on the ground that Jadu Napit had no transferable interest in the same and that the defendant is a trespasser.

(2.) The Minis if awarded the plaintiff a decree, granting him joint possession with the defendant, but on appeal this decision was reversed and the suit dismissed and the plaintiff, therefore, has lodged this second appeal. It is admitted before us that Kasi Nath was a raiyat of the village and the land in suit was apparently originally let to him for horticultural purposes. It appears, therefore, (and this is not disputed in this Court) that in deciding the question of title to this land, the provisions of Act VIII of 1885 will apply.

(3.) The original tenant of the land, Kasi Nath was a raiyat. From the pleadings it cannot be said that he was a raiyat at fixed rates, as according to the plaintiff his tenancy under the plaintiff began in 1268 and according to the defendant's own case it commenced in 1213. It would, therefore, appear that he was an occupancy raiyat.