NADIRAM ALIAS NABADWIP CHANDRA SIL Vs. SRINATH CHAKRABARTI

JUDGEMENT

(1.) The plaintiff sued for khas possession of the land in suit upon declaration of his ryoti interest therein. He claims to have purchased the land from one Ram Kumar Chakravarty, who had an occupancy right in it. The principal defendants contend that Ram Kumar had a mokarari mourashi kayami right and that he settled the land with their predecessor Bangsi Sil by a lease, dated the 28th Kartick 1302 (Exhibit G) under which they Claim an occupancy right. The case, therefore, depends on the question as to what right Ram Kumar had and what right was acquired by Bangsi Sil under Exhibit C. The trial Court was of opinion that Ram Kumar was an occupancy ryot, that his right was heritable but not transferable, that the plaintiff after his purchase had not been recognized by the two-annas co-sharer superior landlord, hence his title to the ryoti was only to the extent of 14 annas share. He also held that Bangsi s ryoti under Ram Kumar was not heritable and, therefore, it did not pass to his heirs, the defendants Nos. 1, 2 and 3, who became trespassers upon his death. These persons, however, had taken a howla tenure in respect of one anna share in the said land and had thus become landlords of the plaintiff also to that extent, and that they as such landlords held adverse possession since the 10th January 1914, which is the date of the death of their father, Bangsi Sil, and inasmuch as the present suit was brought on the 29th March 1916, he found that it was barred under Article 3, Schedule III, Bengal Tenancy Act. He also held that notice of ejectment was necessary upon the defendants but such notice had not been serve and the suit was, therefore, not maintainable.

(2.) On appeal the learned Subordinate Judge held that the suit was not barred by limitation. He was not satisfied from the evidence that the defendants had dispossessed the plaintiff in their capacity as fractional landlords : that they were in possession as the heir of Bangsi Sil under the lease which had been granted to him by Ram Kumar, and inasmuch as the suit had been instituted . within 12 years of the death of Bangsi Sil, the plaintiff was within time. He next found that the plaintiff had got a ryoti title to 15-annas and not 14-annas only as found by the learned Munsif, that the plaintiff s purchase of Ram Kumar s interest was not recognised by the one-anna landlords, namely, the defendants Nos, 1 and 2, who had purchased a howla right to one anna as aforesaid, and he held that the plaintiff had in the circumstances gob a ryoti title to 15-annas share of the land in suit. He agreed with the Munaif that Ram Kumar was not a ryot of a fixed rent but that he was only a ryot with a right of occupancy in respect of the disputed land, that Bangsi Sil s status was that of an under ryot under Ram Kumar and that the defendants did not inherit his under ryoti right and that the defendants were trespassers.

(3.) A contention was raised that inasmuch as the jama of this ryoti had remained unchanged for more than 20 years the presumption under Section 50 of the Bengal Tenancy Act should apply. He held that this was not a suit under that Act inasmuch as the defendants were not under ryots under the plaintiff and that, therefore, the defendants were not entitled to any notice under Section 49, Clause (b). The defendants contended that even if the Court held that Ram Kumar had not a mourashi right, yet they had acquired a right of occupancy having been on the land for much longer than the statutory period. They contended that Ram Kumar having granted the lease under which Bangsi built his homestead, made excavations and gardens and as after Bangsi s death the defendants had remained upon the land, Ram Kumar could not be heard to say that Bangsi was a trespasser, although Ram Kumar could not legally have granted such a lease as ho had and that as Ram Kumar would have been estopped from raising any question as regards the validity of the lease, the plaintiff having purchased from Ram Kumar s son was equally estopped. The learned Subordinate Judge held that Ram Kumar had no right to grant such a lease which was for a term exceeding 9 years, that in the lease Rim Kumar had stated that he was a kayami ryot, which did not necessarily imply that he was a ryot at a fixed rent. He found that it did not appear that Rim Kumar had made any representation that he was a ryot at a fixed rent or that his right was other than that of au occupancy ryot, nor did it appear that Bangsi, believing in any representation of Ram Kumar, was thereby induced to take the lease. He referred to Candi Caran Nath v. Somli Bibi 44 Ind. Cas. 254 : 22 C.W.N. 179 : 28 C.L.J. 91 and held that the grantor could question the validity of such a lease. He also found that the defendants had failed to make out that they had any occupancy right. He finally held that the plaintiff was entitled to get ijali khas possession in respect of 15-annas share only of the lands in suit: hence this appeal.