HARI MOHAN MONDAL Vs. GOUR MOHAN SARKAR

JUDGEMENT

(1.) In this case the plaintiff sued for ejectment on the footing that the plaintiff had raiyati right in some 88 bighas and that the defendant was an under-raiyat under him who had been served with notice under Section 49, Bengal Tenancy Act, and had not given up possession when the notice took effect. The defence of the defendant is that he is not an under-raiyat because the plaintiff is a tenure-holder and is not a raiyat. Accordingly it has to be decided whether the plaintiff's holding of 88 bighas is or is not a tenure. If it is, then the defendant is clearly a raiyat and these proceedings in ejectment are not effective as against him.

(2.) The Court of the Munsiff took the view that the plaintiff's case was made out. It held that the plaintiff was shown to be a raiyat and that consequently the defendant was an under- raiyat. The Additional Subordinate Judge of Rajshaye, on appeal, took another view holding in particular that there was a presumption against the plaintiff under the Bengal Tenancy Act to the effect that he was a tenure-holder.

(3.) It appears that the defendant's case was to the effect that the plaintiff in addition to the 88 bighas held further land which would bring the amount of the land held by him up to and over 100 bighas. The case that these two lettings were originally one and were subsequently divided was not proved. I cannot say that I see a clear finding anywhere to the effect that under the same landlord the plaintiff now holds over 100 bighas, but I shall assume for the present purpose that that might be true. The main ground on which the Court of the Munsiff and the Court of the Subordinate Judge disagree is that the Munsif has taken the view that the holding of the plaintiff under which the defendant claims is not itself as large as 100 bighas : consequently he thinks that there is no presumption to assist the defendant to make out the plaintiff to be a tenure-holder.