Mallick, J. - (1.) The suit out of which this appeal arises is a suit for ejectment, rent and mesne profits.
(2.) It is alleged in the plaint that the defendant is a tenant and was inducted on 14th September 1938 corresponding to 1st Baisakh 1345 B.S. This tenancy is evidenced by a registered kabuliyat executed by the defendant in favour of the plaintiff. The period of the lease Was for 3 years from 1st Baisakh 1345 B.S. After the expiry of the lease the defendant was holding over till the end of Bhadra 1355 B.S. when by a notice to quit duly served on the defendant the tenancy was determined. The defendant not having complied with the notice to quit, the present suit was instituted.
(3.) The defence taken in the written statement is that the defendant was in possession as a tenant not from 1st Baisakh 1345 B.S as alleged but from 1330 B S. It is alleged that the defendant and his brother one Bankim Malik was in possession of 5 cottahs of land which includes the land in suit under a kabuliyat executed by Bankim. in favour of the landlord since 1330 B.S. In 1345 B S. there was a partition between the defendant and Bankim whereby the suit land was allotted to the defendant. The defendant thereupon executed a kabuliyat in 1345 B.S. in favour of the plaintiff in respect to the land allotted to him as aforesaid in partition. It is contended therefore that the defendant has been in possession of the suit land for over 12 years and as such he is protected from eviction by Section 7 of the Bengal Non-Agricultural Tenancy Act The validity of the notice to quit and arrears due is also disputed in the written statement.;