GOPAL MONDAL Vs. ESHAN CHUNDER BANERJEE
ESHAN CHUNDER BANERJEE
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Amber Ali and Pratt, JJ -
(1.) The question involved in this second appeal turns upon the construction of Section 85 of the Bengal Tenancy Act. The plaintiff alleges that he has acquired by purchase the disputed land, which consists of several plots, that the defendants Nos. 1 to 10 were korfa raiyats under his vendor and, inasmuch as under Section 85 of the Tenancy Act, the sub-leases granted to them by the previous holder purporting to be mocurrari had expired at the end of nine years from the commencement of the Tenancy Act, lie seeks in this suit to recover khas possession of the land in question. He also alleged that he had served the defendants with a notice under Section 49 of the Tenancy Act. The defendants 11 to 16 are mortgagees under the defendants 1 to 10.
(2.) The defendants Nos. 6 and 7 filed written statements in which among other pleas they urged that the provisions of s. 85 of the Tenancy Act, which debar the grant of subleases for more than nine years, do not apply to under-raiyats, who had obtained subleases before the Act came into force, and that, as their registered pottah was executed some time in the year 1879 (28 Chait 1285), the plaintiff was not entitled to recover khas possession. They also alleged that the plaintiff was himself an attesting witness to their document and was estopped from raising any question regarding its validity. It is not necessary to refer to the other objections in the written statement. The assignee defendants took similar objections.
(3.) The suit was tried by the Munsif of Bankura who, among other issues, framed the following: "Can plaintiff set aside the bundobust by the potta after expiry of nine years from the time when the Bengal Tenancy Act was enforced? Was the potta executed with the consent of the landlords of the executants?" He held upon the objections of the defendants that, in respect of two of the plots included in the lands in suit, the plaintiff was a tenure- holder and the defendants held the same as raiyats, and that, consequently, the suit so far as those two plots were concerned, was not maintainable. He held also that, although the sublease was not proved to have been granted with the sanction of the superior landlord, yet as Section 85 Sub- Section (3) invalidated the grant only as against the landlord, and as the present question was between the assignee of the grantor and the grantees, the plaintiff was not entitled to recover. He accordingly dismissed the suit.;
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