- (1.) These two appeals arise out of two suits instituted in the lower court being Suit No. 42/90 of 948/1947 and Suit No. 43/91 of 1948/1947. Both these suits as also another suit instituted between the same parties being Suit No. 44/92 of 1948/1947 are covered by one judgment of the trial court and one judgment of the lower appellate court. The trial court found against the Plaintiffs. Against the said decision of the trial court, so far as it related to suit No. 44/92 of 1948/1947, there was no appeal and consequently the same remained binding on thee Plaintiffs. The Plaintiffs however preferred appeals against the decision of the trial court so far as it related to the other two suits namely, Suit No. 42/90 and Suit No. 43/91. The lower appellate court dismissed the said appeals and it is against that decision that the present appeals have been preferred to this Court.
(2.) The learned advocate for the Appellants in the first instance urged a ground which is common to both the appeals. The question raised by the learned advocate, shortly put, was whether or not a person holding from one of the proprietors was a raiyat within the definition of the word raiyat as given in the Bengal Tenancy Act. If he was a raiyat then he would come within the exceptions of Section 37 of the Bengal Land-Revenue Sales (West Bengal Amendment) Act, 1950 (West Bengal Act VII of 1950). The facts necessary to be set out in order to appreciate this point are as follows: On June 24, 1935, Touzi No. 4431 of the Burdwan Collectorate was sold in a revenue sal. One Charu Chandra Dutta purchased the said Touzi. He thereafter sold it to the Plaintiffs. The present suits were instituted by the Plaintiffs against the Respondents for recovery of possession of several plots in the said Touzi. The Defendants' case in Suit Nos. 42/90 and 44/92 was that there were two plots being C. S. plots Nos. 4585 and 4586 which consisted sub-plot in the western side. These plots exclusively belonged to Prangobinda, Dolgobinda, Kartick and Ganesh. On an amicable partition Kartick and Ganesh got western kita and Prangobindo got the two eastern kitas, Thereafter Kalachand Pal who was Defendant in Title Suit No. 44 took raiyati settlement of the western kita from Ganesh and Kartick Pandit and Easheswari, the Defendant No. 2 in Title Suit No. 42/90, took raiyati settlement of the two eastern kitas from Prangobinda. The other Defendant Rampada had no concern with the said lands. Since the said settlement Kalachand and Rasheswari are in possession of these lands on payment of rent. The Plaintiffs' case was that under Section 37 of the Bengal Land Revenue Sales Act, 1950, they were entitled to annul these settlements and get khas possession thereof. The other suit, that is Suit No. 43/91 of 1948/47 related to plots Nos. 6848 and 6525. The prayer of the Plaintiffs in respect of these plots were also the same. I should have mentioned that in all these suits there was an alternative prayer, namely, that if the Plaintiffs were not entitled to obtain a decree for ejectment, a fair and equitable rent be settled in respect of the said plots. The trial court held that it appeared from ext. A(1) that Ganesh and Kartick had granted settlement of the western one kitta to Kalachand on Jaistha 30, 1336 B.S. and it appeared from ext. A that Prangobinda had granted a raiyati settlement of the two eastern plots to Rasheswari on Chaitra 3, 1336 B.S. The finding of the trial court also was that there was nothing to disbelieve the story of the" amicable partition between the Pandits. The learned Judge also came to the conclusion that there was a mistake as to the incorporation of the C.S. plots in the Pattas, He held that though the boundaries given in the pattas exts. A. and A(1), unmistakably show that both the C.S. plots Nos. 4585 and 4586 were settled with Kalachand and Rasheswari, yet only G.S. plot No. 4585 has been mentioned therein. In other words, the learned Judge found that in the said -pattas the C.S. plots 4585 and 4586 have been taken as one plot. The learned Judge held that the Plaintiffs were not entitled to obtain a decree for ejectment. On the question of settlement of fair rent the trial court held that the existing rent was fair and there was no reason to disturb the same. As for Suit No. 43/91 the trial court decreed the same in favour of the Plaintiff.
(3.) As already mentioned, there was no appeal against the decision of the trial court in Suit No. 44/92 but the appeal related to other suit. The lower appellate court dismissed the appeals in Suit Nos. 42 and 44 but allowed the appeal in Suit No. 43'91. On the question of assessment of fair reut the lower appellate court held that the rent in respect of Suit No. 42/90 and Suit No. 44/92 were fair but that different considerations arose with regard to Suit No. 43/91. He, however, gave liberty to the Plaintiffs to bring a suit for determination of the fair and equitable rent on the subject-matter of the said suit. The Plaintiffs have filed this appeal against the said decision of the lower appellate court.;