SADULLAH PRAMANIK Vs. MD. KHALILUR RAH­MAN

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order passed by the High Court Division in Second Appeal No. 1355 of 1968.

(2.) Defendants are the appellants Plaintiff respondent filed Title Suit No. 66 of 1966 in the Court of Munsif, 2nd Court, Serajganj for declaration of title and recovery of possession. His case was that the suit land described in the schedule Ka and Kha of the plaint appertaining to Khatian Nos. 123 and 125 respectively of mouza Bhangari originally belonged to landlords Girija Sannyal and Aswini Kumar Sannyal. Bassarat Akanda and Maidan Akanda used to cultivate the suit land in raiyati right as tenants paying half of the produce as rent. Maidan Akanda surrendered his land in favour of the landlords who in turn gave that land in borga to Bassarat Akanda. Bassarat Akanda died leaving two sons namely Mofiz Akanda and Mahim Akanda who by inheritance got the land of Khatian No. 123 of Schedule 'Ka' as raiyati tenant at a rental of half of the produce and also possessed the land of Khatian No. 125 of Schedule Kha in borga like their father. Having difficulties in paying rent in crop Mafiz and Mahim prayed to the landlords for conversion of Khatian No. 123 into money rent and further prayed for leasing out the land of Khatian 125 to them by fixing a jama. Narayan Chandra Roy, Manager of the Estate leased out 3.91 acres of land of Khatian Nos. 123 and 125 to the plaintiff Mofiz and Mohim at a rental of Rs. 15/8/- annas on 15th Chaitra, 1348 B.S. after receiving Nazarana and issued a Likhon in favour of Mahim and Mofiz who had been possessing the land as tenant on payment of rent to the Sanayal landlords. The present provisional rent Roll Khatian has been finally published in the name of Mahim and Mofiz who have sold two plots out of their jote to the plaintiffs by registered kabala dated 28.1.65. His further case was that the defendants cut and took away jute grown by the plaintiffs for which the criminal case was started but the case was dismissed and being encouraged by an order of acquittal the defendants dispossessed the plaintiffs from the suit land on 11.6.66.

(3.) The suit was resisted by the defendants who contended that Basarat Akanda and Maidan Akanda had no raiyati right in the suit land. Both of them were simple bargadars under the landlords namely Sannyals. Mohim and Mofiz never possessed the land in raiyati right. Therefore the plaintiff's purchase of the suit land from Mofiz and Mohim did not confer any title on the plaintiff. Defendants, it was contended, were in possession and took pattan of the suit land by Amalnama. The trial Court on consideration of the evidence decreed the suit. Appellate Court, however, reversed the decision and allowed the appeal and found that the defendants are in possession by making reservation as under: