JOGENDRA NARAYAN DHAR Vs. ASKARULLA

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff in a suit instituted by him to eject the defendants, who are his tenants, after serving on them on the 22nd Assin 1333 a notice to quit requiring them to vacate the lands with the expiry of the Bengalee year 1333. The defendants took two pleas. They stated that they were occupancy ryots and that the notice to quit had not been served on them. The Court of first instance overruled both these pleas and decreed the plaintiff's suit. The defendant preferred an appeal which was heard by the Subordinate Judge who by his judgment dated the 10 June 1930 dismissed the plaintiff's suit on the finding that the notice to quit had not been served. The plaintiff preferred an appeal to this Court, being Second Appeal No. 619 of 1931. My learned brother Mitter, J. who decided the said appeal, held that the finding of the Subordinate Judge on that point was vitiated by the fact that the principles laid down in Harihar Banerjee V/s. Ram Soshi Roy AIR 1918 P C 102 and some material circumstances had been overlooked by the Subordinate Judge. The said Second Appeal was allowed, this Court holding that the notice to quit had been properly served, and the case was remanded to the lower appellate Court for decision on the merits, including the question as to whether the defendants had the right of occupancy. The learned Subordinate Judge after remand has held that they had such rights. He accordingly dismissed the suit. Hence this appeal by the plaintiff. The defendants were inducted on the land in 1324 B.S. On the 21 Bysack 1324 the plaintiff's predecessor-in-interest gave them a Potta, Ex. A. The Potta recites that the defendants held under the grantor a plot of land in occupancy right, but at his request they had executed a deed of surrender in respect of the said plot of land in favour of a person, Rajani Mohan Day, to whom the grantor had transferred the said plot of land. Then follows the grant in respect of the lands in suit in the following terms: That you the grantees shall have in the demised premises the same rights as you had in the aforesaid surrendered land, and I grant you Jote rights therein.

(2.) The lands being situated in the District of Sylhet, the rights of the parties are governed by Act 8 of 1869 (B. C). At the time when the suit for ejectment was brought, 10 August 1927, the defendants had not been in occupation for twelve years and hence they had not acquired occupancy rights under the provisions of Section 6 of the said Act. The question which is therefore in controversy in this appeal is whether on the grant Ex. A the defendants can be ejected at the will of the landlord. They cannot be so ejected if the grant has conferred on them a permanent right to remain on the land.

(3.) The learned advocate appearing for the plaintiff-appellant raised two points: (1) that an occupancy right is a creature of statute and cannot be the subject matter of a grant, and so the defendants have not. acquired occupancy rights on the basis of the Potta Ex. A; (2) that Rajani Mohan Dey, not having been able to obtain possession from the defendants of the plot of land surrendered to him, the consideration of the Potta Ex. A has failed and the defendants cannot remain on the lands in suit on the basis of the said Potta.