ASWINI KUMAR DUTTA Vs. GOBINDA CHANDRA CHANDA

JUDGEMENT

(1.) This is not an easy case. The plaintiffs claim - khas possession of four gundas of land. Upon these four gundas of land were planted some betel trees. There can be no doubt that the-defendants were entitled by the leave and license of the plaintiffs to be upon the land for the purpose of gathering betel leaves; in other words the position of the parties was that the defendants were upon that land as licensees coupled with an interest to gather betel leaves until the plantation dried up.

(2.) The plaintiffs set up first a contract by which the Defendant No. 2 agreed to go out of the land after three years. That agreement was negatived. The plaintiffs in the alternative alleged that by the custom of the country the defendants must leave the land when the plantation failed. There is no direct finding that such a custom existed, although in both the Courts evidence appears to have been directed and the controversy raged over the question whether there was such a custom and if so, whether under the custom the time when the licensees must retire had arrived. The defendants case was also negatived. In the event the learned advocate for the appellants has skilfully urged that, inasmuch as the appellants are entitled to the land, the right to possession, in the absence of any other countervailing right being made out, will follow the title. But that is not the position. The position here is that there was a license coupled with an interest and in the absence of any satisfactory evidence that this interest has come to an end we do not feel disposed to disturb the decision of the lower <JGN>Page</JGN> 2 of 2 appellate Court that at the date when the suit was filed the plaintiffs claim was premature.

(3.) Under the circumstances the appeal will be dismissed with costs. The cross objection not being passed is also dismissed but without costs. Cuming, J.