SAMARADDI Vs. KALI CHANDRA NAG CHOWDHURY

JUDGEMENT

(1.) This is a suit for possession on declaration of title. The plaintiff s case was that he was a raiyat of the land in question and that the defendants Nos. 1 and 2 and one Asraf Ali were under raiyats under him. He served notices on defendants Nos. 1 and 2 and as they did not give up possession, he brought this suit against them. The defendants other than defendants Nos. 8 to 11 were trespassers. Defendants Nos. 8 to 11 were the heirs of Asraf Ali and they were not in possession. The suit was dismissed by the first Court but decreed by the lower Appellate Court. It appears that a Kabuliyat was executed by defendants Nos. 1 and 2 and Asraf Ali before the passing of the Bengal Tenancy Act. In the Kabuliyat no term is fixed. The first Court treated it as a permanent under-raiyati lease. The second Court has not come to any finding as to whether it was permanent lease or not, bat has held that it was not valid for more than 9 years after the passing of the Bengal Tenancy Act. That view is obviously correct in view of Section 85, Clause 3, of the Bengal Tenancy Act. The lower Appellate Court found that notice was served on defendants Nos. 1 and 2 and that this notice was sufficient. It also found that the other defendants were trespassers and had never been recognised by the plaintiff. The present appeal is by defendants Nos. 2, 3, 7, 8 and 9. On behalf of defendant No. 7 it is now argued that as the Munsif found that part of the land which was subleased by the plaintiff to defendants Nos. 1 and 2 and Asraf Ali was sold to him and as he found that he was in possession for more them twelve years, he had acquired a title by adverse possession of a limited interest, that is, title as a tenant, and that he was entitled to notice. The learned Judge has found that the plaintiff never recognised him as a tenant. He was further of opinion that so long as defendants Nos. 1 and 2 were alive the plaintiff could not interfere with any person in occupation of the land without terminating their lease. What might be the position if the defendants Nos. 1 and 2 had transferred the whole of the land is immaterial to consider. This much is clear, that so long as the lease of defendants Nos. 1 and 2 was subsisting, the plaintiff could not claim to enter upon the land without terminating their lease.

(2.) The fact that the lease was not valid for more than 9 years after the passing of the Bengal Tenancy Act does not materially affect the case. Defendants Nos. 1 and 2 were allowed to stay on in the land and their title as sub-lessees is established independently of the Kabuliyat by occupation of the land and by payment of rent. The plaintiff has now terminated their lease by a proper notice. Before terminating their lease it is quite clear that he could not,, interfere with any arrangement which his lessees had made with a third party. It is quite clear that defendant No. 7 was not entitled to any notice nor could any limitation run against the plaintiff so as to enable defendant No. 7 to establish a title by adverse possession of a limited interest.

(3.) The position of defendants Nos. 8 and 9 is very similar. They were found by the Munsif to be in possession for more than 12 years. The Munsif found that the plaintiff had allowed them to hold the land. The learned Subordinate Judge found that the plaintiff had not recognised them. Exactly the same consideration with regard to the question of limitation in their case applies as in the case of defendant No. 7. Until the tenancy of defendants Nos. 1 and 2 was terminated the plaintiff could not have any right of action against them. It is suggested that under the terms of the lease the plaintiff was entitled to re-enter as soon as any portion of the land was transferred. Assuming that to be so, the plaintiff was not bound to do so. So long as he recognised defendants Nos. 1 and 2 there was no cause of action against anybody else on the land.