TARAKISHORE CHOWDHURY Vs. NABIN CHANDRA KARMOKAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the purchaser at a revenue sale to eject the defendants from the lands held by them. The area of the land in dispute in this suit is about 7 cot inks 7 dhurs and 7 powas. The defendants have been found by the lower Appellate Court to hold 3 cottahs and 7 dhurs as a lakheraj tenure from a time before the Permanent Settlement. It has, therefore, held that the plaintiff is not entitled to eject them. The learned Subordinate Judge, however, has stated that the claim for khas possession by the plaintiff and for the ejectment of defendants is dismissed.

(2.) The plaintiff appeals and on his behalf it has been argued (1) that as the learned Judge has found that only 3 cottahs 7 dhurs was the area of the defendants lakheraj tenure, the plaintiff is, therefore, entitled to a decree for khas possession of the remaining 4 cottahs 7 powas; (2) that the finding of the Subordinate Judge as to the 3 cottahs 7 dhurs being a lakheraj tenure is wrong; (3) that the entry in the than map is not admissible in evidence; and (4) that the lower Appellate Court has misconstrued Section 6 of Regulation XIX of 1793.

(3.) We think that the first of these pleas must prevail. The defendants are in occupation of 7 cottahs 7 dhurs and 7 powas of land. The lower Appellate Court has found that the defendants are protected to the extent of 3 cottahs and 7 dhurs. Therefore, the plaintiff is decidedly entitled to eject the defendants from the remaining 4 cottahs and 7 powas of land in respect of which the defendants are obviously trespassers. We must, therefore, modify the decree of the lower Appellate Court to this extent with costs in proportion.