PEARY MOHUN MOOKERJEE Vs. BADUL CHANDRA BAGDI

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent against a decision of Mr. Justice Hill confirming the judgment of the Courts below, by which the plaintiff's suit; for khas possession of some land has been dismissed. The plaintiff sued for khas possession of the land in dispute, on the allegation that it formed part of the occupancy holding of one Mohesh Chandra Ghose under the plaintiff, that that holding having been sold in execution of a decree for arrears of rent was purchased by the plaintiff, and that the plaintiff was entitled to khas possession of the land as the defendant had no right to the same.

(2.) The defence so far as it is necessary to consider it now, was that the land was held by the defendant as an under raiyat under Mohesh, and that the defendant had acquired a right of occupancy in the same.

(3.) Both the First Court, and the learned Subordinate Judge on appeal, held that the suit was liable to dismissal, as the plaintiff even if he was entitled to set aside the undertenancy of the defendant, could not succeed in this suit as he did not proceed in accordance with the provisions of Section 167 of the Bengal Tenancy Act; and Mr. Justice Hill has confirmed their judgments holding that, though by Section 85 of the Bengal Tenancy Act, J the sub-lease granted by Mohesh to the defendant was invalid, and though by Section 22 of the Act, upon the purchase of the occupancy holding by the plaintiff who was the sole landlord, the occupancy holding became merged in the plaintiff's zemindari right, still such merger could not affect the rights of the defendant, and that it was, therefore, necessary for the plaintiff, if he wanted to annul those rights, to proceed in accordance with the procedure prescribed by the Bengal Tenancy Act.