Raghunath Bhattacharyya, J. - (1.) This Letters patent appear has been directed against the judgment and decree passed by our rearmed (sic) A.C. Gupta J., as his Lordship then was, in the second Appeal which was (sic) by the (sic). The Said appeal was neared analogously along with tow other appears and a common judgment was passed avowing the said appear and decreeing the Appellants the origami suit was dismissed by the trial Court and against that decision an appeal was taken to the District Judge, but the same was dismissed by the learned Subordinate Judge who heard the appeal.
(2.) The Plaintiffs Harekrishna Majumdar and other started the suit for eviction against the Defendants on the abnegation that the Defendants were then korja tenants under the Bengal Tenancy Act in respect of the suit land. They alleged that they wanted the land for their own cultivation and for that purpose they served notices upon the Defendants requiring them to vacate the suit land on the expiry of the year 362 B.S. The suit was filed by the Plaintiffs on June 1,1956, that is to say, after the date of vesting under the provision of the west Bengal Estates Acquisition Act, 1953, (hereinafter referred to as the Act). Amongst several defences, the Defendants pleaded in their written statement that the suit was barred by the provisions of, the Act and that the State of West Bengal was a necessary party. The trial Court found that the Plaintiffs wanted the suit land for direct cultivation and that, as the notice was duly served, the Plaintiffs could claim the reliefs, but due to the promulgation of the Act and as the interest of the raiyats having under -raiyats had vested in the Stated since Baisakh 1363 B.S. the Plaintiffs were held to be not entitled to get any relief. The suits were found not maintainable. The ground of refusal of the claim of the plain tiffs was that the Plaintiffs were not in khas possession of the disputed land and therefore, after the date of vesting they could not recover possession by ousting the Defendants who had been the under tenants under the Plaintiffs. In the First Appeal also the suit was not found maintainable. It was canvassed before the learned Subordinate Judge that after the notice period the tenancy of the Defendants should have been deemed to be terminated and that the Plaintiffs ought to have been taken as in khas possession of the suit land. The learned Subordinate Judge was of the view that unless all the grounds necessary for eviction of the under -tenant were proved in Court and unless a decree was passed, the tenancy of the Defendant would not have been presumed to be determined. Moreover, the learned Subordinate Judge held that unless the Plaintiffs were in khas possession, they had no right to retain the land in question. 10 this view of the matter, the suit was found not maintainable and the trial Court's decision was upheld.
(3.) In the Second Appeal Gupta J. followed the decision of P.B. Mukharji (as his Lordship then was) in the case of Taraprosad Mukherjee and Ors. v/s. Ganesh Chandra Mondal : 70 C.W.N. 652. According to Gupta J.: The Plaintiffs have undoubtedly the right to maintain the suit for possession against the Defendant even if it is assumed that the respective tenancies had been Subsisting on the 1st day of Baisakh. 1363 B.S. That the Plaintiffs are otherwise entitled to retain the lands is clear from the facts stated above. That they mean to make them khas is also obvious from the fact that they terminated the tenancies by serving on the tenants notices as required under Sec. 48C(d)of the Bengal Tenancy Act and filed the instant suits. Following the decision of P.B. Mukharji J. it Was held by Gupta J. that as the Plaintiffs were entitled to get the suit land in khas, such land should be deemed to be in khas possession of the Plaintiffs. The sum and Substance of the view of Gupta J. will appear in the following portion of his judgment: I think the expression 'in khas possession' in Sec. 6(1)(d) implies besides actual physical possession, a present right to possess the land in khas at the date of vesting. In the instant suits after the termination by the Plaintiffs of the respective tenancies of the different sets of Defendants with the expiry of the month of Chaitra 1362 B.S., from the 1st day of Baisakh, 1363 B.S. the Defendants were trespassers on the lands and could have no Subsisting right thereon. Towards the end of the judgment Gupta J. concludes: Therefore, with effect from 1st Baisakh, 1363 B.S. the Defendants had ceased to have any right or interest in lands forming the subject -matter of the three suits and their possession of the same was unlawful; as such, the Plaintiffs must be held to have been in khas possession of the lands at the date of vesting and entitled to exercise the right of retention.;