HEMANGINI DASSI Vs. ASUTOSH DAS

JUDGEMENT

(1.) This appeal has arisen out of a suit which was instituted by the plaintiff for the recovery of a sum of Rs. 25 as damages for certain trees that has been cut from a plot of land which defendant 1 held under under the plaintiff as tenant and also for an injunction restraining the said defendant from cutting the trees standing on the land, in future. The suit has been dismissed by both the lower Courts and the plaintiff has thereupon preferred this second appeal.

(2.) The plaintiff's case was that defendant 1 had been holding the land under a kabuliyat dated 1309 B.S. and that, in contravention of the terms of the said kabuliyat, the said defendant in collusion with other persons had cut down and removed five trees standing thereon. The defence of defendant 1 was that the tenancy was not created by the kabuliyat of 1309 B.S. but that it had been in existence for over 80 years and from the time of the father of the said defendant, that the tenancy-consisted of an area of 2 bighas out of which defendant 1 had sold a quantity of land measuring 13/4 bighas to one Kedar Nath Mukherji and had retained for himself the remaining land, namely, 5 cottas in area and further that defendant 1 had not cut any trees from the said land. On this defence being taken, the plaintiff impleaded as one of the defendants in the suit defendant 2 who was the person in whose name the purchase had been made by the said Kedar Nath Mukherjee. She also added as parties defendants to the suit two other persons, namely, defendants 3 and 4 on the allegation that they were servants of the said Kedar Nath Mukherjee.

(3.) The Munsif held that the tenancy was a very old one and had existed from the time of the father of defendant 1 who himself was about 80 years of age. He-held further that the origin of the tenancy was not known, that rent had been uniformly paid for the tenancy at the rate of Rs. 3 ; that the kabuliyat of 1309 B.S. was a document which was not acted upon, that defendant 1 was a tenant holding at a fixed rate of rent and, under the law, therefore, he had the right to cut and appropriate the trees on the land and further that he had a permanent and transferable right and that, therefore, the plaintiff was not entitled to a decree at all. The plaintiff, thereupon, as I have already stated, preferred an appeal. The Subordinate Judge who dealt with the appeal held that, in the absence of Kedar Nath Mukherjee as a defendant in the suit, the suit was not maintainable. The reasons that he gave for this decision were that Kedar Nath Mukherjee was the real purchaser and defendant 2 was his benamidar, that the holding was the ancestral holding of defendant 1, that defendant 1 himself had not out any of the trees which were the subject of the suit, that if any tree had been cub, it had been cut by Kedar Nath Mukerjee and that therefore the suit was not maintainable in the absence of the said Kedar Nath Mukherji as a defendant therein.