BEJOY CHANDRA ROY SARKAR Vs. MAHARAJA SIR PRODYOT KUMAR TAGORE BAHADUR, KT, AND THE SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) THIS case was remanded to the lower Appellate Court in order that that Court might come to a clear finding as to the nature of the custom referred to in the kabuliyat. The learned Subordinate Judge has returned his finding and he says: "Having regard to the evidence adduced in this suit, I am of opinion that the plaintiff has succeeded in proving the existence of the custom referred to in the kabuliyat executed by the defendant, and that the custom is ancient, reasonable, certain and obtains throughout the Pergunnah (both in the districts of Mymensingh and Rampur)." that finding is sufficient to dispose of the case. It is contended, however, on behalf of the appellant that the landlord ought to have adopted the procedure laid down in Section 84 of the Bengal Tenancy Act for acquiring the land for establishing Pandar (market), &c. But the present suit was based upon the terms of the kabuliyat under which the defendant was according to custom, bound to give up possession of land in the event of establishment of a Hat, Bazar, Bandar, etc., within the land. Section 84 is an enabling section and has nothing to do with the contrast contained in the kabuliyat.

(2.) THE next contention is that according to the finding the custom is for the tenants to give up 1/50th or 1/100th part of the holding in the event of a market, &c., being established and that there is no reason why the landlord should get more than 1/100th part. But the plaintiff stated in the plaint that the land in dispute was required for the purpose of a market; and there was no denial that this land was necessary for the purpose of a market. That being so, we do not think that the defendant can insist upon the landlord taking only 1/100th part of the land; the proportion of the land which has to be given up apparently varies with the requirements of the market. THE appeal is accordingly dismissed with costs (one set).