Decided on February 23,1973

Kazi Taufiquor Rahman Appellant
Bewa Elachi Bibi Respondents


D. M. Sen, J. - (1.) THIS is an appeal under Clause 15 of the Letters Patent against the judgment of Pathak, J. dismissing the plaintiff appellant's appeal arising from a suit instituted by him for ejectment of the defendant -respondent from the suit land on the ground that it was required by him (plaintiff) for his bona fide use. The plaintiff's suit had earlier been dismissed by the learned Sadar Munsiff, which dismissal was affirmed by the learned Additional District Judge, Gauhati upon appeal.
(2.) THE plaintiff's case is that he is the absolute owner of the suit land, which devolved on him by virtue of a registered deed of gift from one Kazi Kayambir Rahman. The defendant -respondent was a tenant of Kazi Kayambir Rahman and upon the aforesaid gift became the plaintiff's tenant. The defendant was served by the plaintiff with a registered notice to vacate the suit land, which she failed to do. The suit for ejectment was filed thereon, with results as stated aforesaid. The learned single Judge has affirmed the judgment of the trial court and of the appellate court below. He has held that there being a categorical denial by the defendant of tenancy of the suit land under the plaintiff, the plaintiff was required to prove that he had acquired title to the suit land by virtue of deed of gift executed by Kazi Kayambir Rahman in his favour. The learned single Judge has observed that no issue regarding the alleged deed of gift and the plaintiff's acquisition of title to the suit land by virtue of such deed of gift had been framed in the suit. As such, the learned single Judge held that the courts below were correct in directing the plaintiff to file a regular suit for declaration of his title to the suit land. There was no doubt, a submission before the learned single Judge by the counsel for the plaintiff -appellant that the question of title by virtue of deed of gift should be decided in this very suit. That submission was rejected by the learned single Judge on the ground that the question of the plaintiff's title could not be adjudicated upon adequately and properly in this suit for ejectment simpliciter.
(3.) THIS appeal under Clause 13 of the Letters Patent is thus, against the judgment of the learned single Judge, primarily on the ground that the question of the plaintiff's title should have been adjudicated in this suit for ejectment and the learned Judge in not having done so fell into an error.;

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