Bankim Chandra Ray, J. - (1.) This is an appeal at the instance of the defendants against the judgement and decree passed by the Additional District Judge, 9th Court, Alipore, on February 15, 1966 reversing the decision of the Subordinate Judge, 8th Court, Alipore, passed on March 30, 1965 in Title Suit No. 49 of 1962.
(2.) The facts of the case in brief are that the disputed property comprised of C.S. Plot Nos. 938, 993 and 940 measuring about 2.54 acres in Khaitan No. 72 in Mouza Hingalgunge within P.S. Hasnabad, District 24-Paraganas was owned and possessed by the defendants 1, 2 and 3. On February 16, 1952, corresponding to 3rd Falgun, 1358 B.S. the defendants who are Raiyats Mokarari Sthitiban leased out the same to the plaintiff by an indenture of lease and put the plaintiff into possession of the said entire property which is a 'Jalkar' as a tenant under them. According to the terms of the lease the plaintiff was to pay Rs. 100/- per annum for the Jama 'Jalkar' and half of the produce of the land for use and enjoyment of the said property as a tenant. The said lease was for a period of 5 years. The plaintiff was in possession of the suit property according to the terms of the said lease at the time when the West Bengal Estates Acquisition Act came into force. The interest of the defendants 1, 2 and 3 vested in the State and the plaintiff became a tenant under the State in respect of the suit property. The defendant 1, 2 and 3 in collusion with the defendants Nos. 4 and 5 are trying to disturb the possession and the enjoyment of the suit property of the plaintiff and they managed to get the same recorded in the revisional record of rights in their names and the plaintiff was recorded as a bargadar under them. The plaintiff is not a bargadar but a tenant in respect of the suit property. So this suit has been filed praying for a declaration that the plaintiff was the tenant in respect of the suit property previously under the defendants 1, 2 and 3 and at present under the proforma defendant No. 6, the State of West Bengal and for other ancilliary reliefs. This was numbered as Title suit no. 49 of 1962. The defendants Nos. 4 and 5 filed a joint written statement and contested the claim of the plaintiff. It has been stated that the plaintiff was given by the aforesaid deed of lease 'Vasa Jalkar' right and not a tenancy. It has also been stated that the plaintiff worked in the disputed land as a labourer of the defendants on the basis of a Krishi Mojuri agreement executed by him in favour of the defendants 1, 2 and 3. The defendants 1, 2 and 3 executed a deed of gift on September 2, 1957 in favour of the defendants Nos. 4 and 5 and delivered possession of the suit property in favour of the defendants. It has been pleaded that the plaintiff had no tenancy right in the 'Vasa Jalkar' and he was a bargadar in respect of the disputed property and his name was correctly recorded as bargadar in the finally published R.S. record of rights. So the suit is liable to be dismissed.
(3.) On March 30, 1965, the Subordinate Judge, 8th Court, Alipore after hearing the parties and on a consideration of the dated of lease (Ext.1) found that the plaintiff was given a 'Jalkar' right to catch fish from the said tank fishery without any right to the land or soil underneath. It has been further held that the plaintiff himself executed Krishi Mojuri agreement (Ext. A) which clearly disproves the plaintiff's case of tenancy and supported the legal presumption of the record rights that the plaintiff was a bargadar in respect of the disputed property. It was therefore held that the plaintiff had no tenancy right in the disputed property and the suit was, as such, dismissed with costs.;