MALEKHA KHATUN Vs. MD. ABUL KASHEM

JUDGEMENT

(1.) In this appeal by special leave the principal question is whether the decision of the lower Appellate Court, as confirmed in second appeal by the High Court Division, that the holding in question was abandoned by its owner-tenant Priyabala and the Plaintiffs-landlords took khas-possession, thereof under section 87 of the Bengal Tenancy Act, is based on proper consideration of, the evidence on record.

(2.) The impugned order of the. High Court Division is dated 1 June 1983 and the matter arises from O.C. Suit No. 83 of 1963 of the Court of Munsif, Rajshahi. For the purpose of disposal of this appeal history of the suit land need not be traced beyond the admitted raiyat Priyabala, who got it by settlement from the landlords Sudhir and Bijoy in 1342 B S. corresponding to 1935 A.D. Superior interest of the holding was thereafter acquired by the plaintiffs respondents by a Deed of Exchange with their properties in West Bengal whereupon Priyabala accepted the plaintiffs as her landlords and paid rent to them in 1953. Thereafter, controversy started According to the plaintiffs. Priyabala left for West Bengal for good and abandoned the holding without making any arrangement either for cultivation of the land or for payment of the rent and consequently the plaintiffs by serving a notice under section 87 of the Bengal Tenancy Act entered upon the land and took khas possession. But defendant Nos.1 and 2, wives of defendant No.6, on the basis of a spurious claim of settlement from Priyabala threatened to dispossess the plaintiffs who then filed the suit for declaration of tide, confirmation of possession, in the alternative for recovery of possession. During the pendency of the suit, defendant Nos.1 and 2 transferred the land to defendant Nos.3 and 4 without Court's permission.

(3.) Case of the contesting defendants, particularly defendant Nos.1 and 2, is that Priyabala did not abandon the holding, but her bargader, defendant No.5, possessed the land for some time and thereafter they took settlement from Priyabala herself and got possession, and accordingly their names were recorded fu the Preliminary Rent Roll. Their further case is that though the plaintiffs had served notice under section 87 of the B.T. Act for taking khas possession the Collector did not accept their claim.