BHUTNATH NASKAR Vs. MONMOTHO NATH MITRA

JUDGEMENT

(1.) I agree that these appeals should be dismissed, and I do so on the ground that the interest of the defendant was a tenure, and, therefore, not a protected interest " within the meaning of Section 160 of the Bengal Tenancy Act. This is in accord with the interpretation placed on a lease, not fairly distinguishable from the pre- sent, by Mr. Justice Mitra whose decision was affirmed on appeal under the Letters Patent. The District Judge refers to this decision of Mr. Justice Mitra but was evidently misled by the omission of a not before the words "raiyats holding"--an omission shown by a perusal of Mr. Justice Mitra's judgment to be obviously attributable to a clerical error. In this view, I think it unnecessary for me to discuss the further question that has been dealt with by my learned colleague.

(2.) Both the appeals are dismissed with costs. Mookerjee, J.

(3.) This is an appeal on behalf of the defendants in an action for ejectment commenced by a, purchaser at a sale for arrears of rent, after service of notice under Section 167 of the Bengal Tenancy Act. The Court of first instance decreed the suit in the view that the interest of the defendants was liable to be and had been annulled under that section. The District Judge on appeal held that the defendants were not tenure-holders but raiyats and were consequently protected from ejectment under Section 160 of the Bengal Tenancy Act. On appeal to this Court Mr. Justice Doss reversed the decision of the District Judge. He held in the first place that upon a true construction of the lease of the 8 November 18S1 the defendants were tenure-holders and wore consequently liable to have their interest annulled under Section 167 of the Bengal Tenancy Act. He held in the second place that even if the defendants were taken to be raiyats, they were raiyats holding at a fixed rate of rent whose interests were not protected by Section 160. On appeal under the Letters Patent it has been argued that the defendants were not tenure-holders, and that if under the lease of 1881 they were treated as raiyats holding at a fixed rate of rent, as they had been in occupation of the holding for more than twelve years, they had acquired a right of occupancy which was entitled to protection under Section 160. As regards the first of these contentions, it is sufficient to say that the terms of lease upon which reliance is placed make it reasonably plain that the position of the defendants was that of tenure-holders and not that of raiyats. As is pointed out by Mr. Justice Doss, the rights conferred upon the defendants under the lease are very much more extensive than those ordinarily possessed by any raiyats; and I need not refer in detail to the terms of the lease, as I agree with the learned Judge in the construction placed by him on that document, as also with Mr. Justice Mitter in the view taken by him in the unreported case where a lease substantially identical in terms came under consideration (S. A. No. 2862 of 1902 affirmed in L. P. No. 10 of 1905 by Maclean, C.J. and Pratt, J.).