Decided on March 31,1970

Nisaddar Ali Majumdar And Ors. Appellant
Kona Mia And Ors. Respondents


P.K. Goswami, C.J. - (1.) THIS second appeal is directed against the judgment and decree of the learned Subordinate Judge No. 2, Silchar reversing those earlier of the learned Munsiff.
(2.) THAT was a suit for khas possession of about 2 Kathas 10 Lechas of land, which the Defendant No. 1 was occupying by holding a tea -stall on a bazar site which it was. The land appertains to It. S. Patta No. 107 and Dag No. 178. The Plaintiffs served a notice dated 23 -2 -61 (Ext. 1) which was received by the Defendant on 28 -2 -61. The notice demanded vacant possession by the end of 30th Chaitra, corresponding to 13 -4 -61. The tenancy is said to be according to Bengali Calendar year and a monthly tenancy. The learned Munsiff decreed the suit. He held that that the notice was valid and the service was proper. He further repelled the contention of the Defendant that there was a splitting up of tenancy to make the suit non -maintainable in the form it was laid. The learned Sub - ordinate Judge, however, did not consider the question of splitting up of tenancy' but dismissed the suit on the ground that the notice was invalid and hence this second appeal.
(3.) MR . Dam, the learned Counsel for the Respondents, strenuously contends that the suit is clearly not maintainable as the Plaintiff has not brought the suit for eviction of the. Defendant from the entire tenancy which related to two pattas - R. S. Patta No. 107 and R. S. Patta No. 109 - which was really the original tenancy under which the Defendant came to occupy the Plaintiff's land. Mr. Dam further contends that although the learned Subordinate Judge has not dealt with this point in terms of Order 41, Rule 22 on the Code of Civil Procedure, he can support the decree of the learned Subordinate Judge on a point which was not decided in his favour or even by relying on some other ground. I have allowed Mr. Dam to raise that point before me. Unfortunately, however, Mr. Dam is up against his own pleading in the case. In the written statement while mentioning the real facts at paragraph 11, the Defendant has clearly stated that the Plaintiffs had sold the land in R. S. Patta No. 109 to one Jiyauddin Mia whom the Defendant owned up as a landlord' and made payments of rent to him. If this is the position, the learned Munsiff was clearly right in holding that the question of splitting up of tenancy would not arise. The land from which the Plaintiffs are now trying to evict the Defendant is clearly a small piece of land covered by R. S. Patta No. 107 and there is no question of splitting up of tenancy so far as this part of the land is concerned, the land in R. S. Patta No. 109 having already been transferred to Jiyauddin under whom the Defendant himself admits to hold his new tenancy. The first contention of Mr. Dam, therefore, fails.;

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