GOPAL CHANDRA RUDRA Vs. KHATER KARIKAR

JUDGEMENT

(1.) The plaintiffs suit is for recovery of possession of certain land. Mitter, J. agreeing with the Courts below, has dismissed the suit. On this Letters Patent appeal, the learned advocate for the plaintiff contends that in view of Section 85, Ben. Ten. Act defendant 4, who alone contests the suit and contests it in respect of four plots only out of the suit lands is a mere trespasser so far as the plaintiffs are concerned. The plaintiffs are the landlords and defendants 15 to 18 hold the disputed lands as raiyats under the plaintiffs. The tenant defendants defaulted in payment of rent and the plaintiffs, having obtained a decree against them, purchased the disputed land on 23 March 1922. The case for defendant 4 is that he took settlement of the four plots of land of which he is in possession from one Rupchand, predecessor-in-interest of defendants 15 to 18 by means of a registered patta in the year 1310 B.S., i.e., 1903. No notice has been served on him under Section 167 or Section 49, Ben. Ten. Act.

(2.) The patta relied upon by the defendant was not produced or proved at the trial though it appears to have been present in Court. The Record-of-Eights, however, described defendant 4 as a korfa tenant on the basis of a. registered patta.

(3.) At the hearing of this appeal no one appeared to argue the case for the defendants. Mr. Sen for the plaintiffs contends in view of Section 85, Ben. Ten. Act that if the patta of 1903 was for a. longer period than nine years, it is altogether invalid as against the landlord, and that if it was for a period of nine years or less, then it expired in or before 1912 and cannot be set up against the landlords purchase of 1922. The learned Judge has held that even if the term of the patta from 1310 has; expired, the under-tenant must be taken to be holding over and that his interest is an incumbrance which the landlords were bound to annul on notice under Section 167 before they could recover possession.