SARAT CHANDRA ROY CHOWDHURY Vs. RATUBUDDIN MANDAL

JUDGEMENT

(1.) The plaintiffs in the suit out of which this appeal arises are the grandsons of one Imamdi. It is common ground, proved by the patta produced on behalf of the plaintiffs (Exhibit 7) and the kabuliat filed for the defence (Exhibit A), that Imamdi had a tenancy with a rent of Rs. 58 under the landlords whose successors are the principal defendants in the case. Imamdi had two sons, named Yar Mahomed and Gulal, the plaintiffs being the sons of the latter and the pro forma defendants the sons of the former. The landlords, on the strength of the kabuliat above referred to, which was executed by Yar Mahomad alone in 1867, sued to eject the heirs of Yar Mohamad on the ground that their tenancy had come to an end. The decree does not show whether this was because its term had expired or because Yar Mohamad being dead, the tenancy was not heritable. We may, however, take this opportunity of observing that the kabuliat of 1867 was for a term of nine years and that Yar Mohamad and his heirs appear to have occupied the position of tenants holding over on the terms of that document with the exception that the rent payable was subsequently increased by an arrangement to which we shall refer. It has never been contended that the kabuliat operated of itself to create any permanent right in Yar Mohamad or any body else. The plaintiffs asked to be made parties to the ejectment suit on the ground that half the tenancy was theirs. But their prayer was refused; and as Yar Mohamad's heirs did not contest the suit, it was decreed ex parte. The plaintiffs have now brought this suit for a declaration of their right to half the tenancy and for an injunction to restrain the defendants from executing the ejectment decree. The suit has been decreed by the Subordinate Judge of Rangpur and the landlords appeal.

(2.) We may remark at the outset that the learned Pleader for the respondents tells us that his clients do not ask that the landlords should be restrained from executing the whole decree but only so far as it affects their share.

(3.) The learned Subordinate Judge finds that Imamdi was a raiyat with a right of occupancy and that, therefore, the plaintiffs, who are the heirs of one of his heirs, are entitled to a share in his holding and cannot be ejected. He holds, further, though the grounds given for the finding seem quite inconsistent with it, that the kabuliat of Yar Mohamad was a collusive transaction. Both these findings are attacked in appeal.