HOCHEN SARDAR Vs. PORESH NATH PAL

JUDGEMENT

(1.) This appeal is preferred by the defendant No. 1 against the decision of the learned Subordinate Judge of Khulna, dated 3rd January 1917, reversing the decision of the Munsif of the same place. The plaintiffs brought the suit for recovery of possession of certain property after establishment of their title. The main point that has been taken in this appeal, is this. The plaintiffs are the sub-lessees of a raiyat and the question that has been urged on behalf of the appellant before us is that the lease is in contravention of Section 85 of the Bengal Tenancy Act and, therefore, incapable of being given in evidence. The persona through whom the plaintiffs claim, i.e., defendants Nos. 1 and 2, have been found as a fact to be raiyats holding at a fixed rate of rent. In the case of Hari Mohan Lal v. Atul Krishna Boss 23 Ind. Cas. 925 : 19 C.W.N. 1127 it has been established that Section 85 of the Bengal Tenancy Act, which restricts the powers of raiyats to grant under-leases, does not apply to one case of a raiyat holding at a fixed rate of rent, because Section 85 has got to be read along with Sections 18 anl 11 of the same Act. We are bound by that decision and we do not see any reason to dissent from it.

(2.) The other point that is urged before us is that, having regard to the statement of the plaintiffs, as appears from the judgment of the primary Court, that one-fourth of the entire area belongs to the defendant Hoohen Sardar, the Court has decreed too much of the property in favour of the plaintiffs. But that is not so. It is clearly shown by the judgment of the lower Appellate Court.

(3.) The appeal fails and must be dismissed with costs. Duval, J.