GORAI MOLLAH Vs. PANCHU HALDAR

JUDGEMENT

(1.) In this case, it appears that, in 1897, plaintiff 1 purchased an occupancy raiyati interest under a certain howla. In 1898, he took a kabuliyat from the defendant's predecessors. That kabuliyat was to be in operation for nine years; but the tenants have held over upon the terms thereof. The plaintiffs sue in ejectment and the defence with which they are met is that these defendants are not under-raiyats but are raiyats. It is for the defendants to make that case good, particularly if they have to begin by admitting that their tenancy in origin was an under- raiyati. They claim to make that defence good in this way : They say that a six anna share in the howla superior to the occupancy raiyati interest which plaintiff 1 purchased in 1897 was bought by a brother of plaintiff 1, and they further say that this transaction and also the acquisition of the occupancy right were transactions by plaintiff 1 and his brother jointly. From this, they go on to maintain, first, that the purchase of the six annas share in the howla was before the purchase in 1897 of the occupancy right and, on that basis, they say that the case comes within Clause (2), Section 22, Ben. Ton. Act, before it was amended in 1907.

(2.) Now, before the trial Court, the kabala representing the purchase of the six anna share of the howla was not produced. The entry in the khatian relating to the purchase was the evidence upon which the matter was discussed and it would seem then to have been agreed by both the parties and assumed by the trial Court as well as by the lower appellate Court that the purchase of the interest in the howla was prior to 1897. If the defendants were to succeed in making out their defence and were to do so by bringing the case within Clause 2, Section 22, Ben. Ten. Act, the burden of proof was entirely upon them to show that, at the time this occupancy raiyati was acquired, the purchasers were cosharers, in the howla. Strictly speaking, therefore, it was for the defendants to show the date of the purchase of the howla interest; but it seems to -have been a matter of no controversy in the Courts below and the assumption was made in favour of the defendants on the point.

(3.) In this Court, Mr. Ghose on behalf of the plaintiffs-appellants has produced a registered kabala of the year 1902 which purports to satisfy the description of the deed by which Lal Mahomed brother of plaintiff 1 purchased the six anna interest in the howla. It looks very much, therefore, as if the real facts of the case were that the purchase of the superior interest was made after the acquisition of the interest in the raiyati. If that be true, then it is clear that there is no defence to the plaintiffs claim because the matter would come within the explanation of the original Section 22. Assuming, however, the facts to be as the Courts below thought, the position is that the case would come within Clause 2, Section 22. That clause was as follows: If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure holder, it shall cease to exist .