Ambika Prashad Singh vs Achambit Thakur

Fazl Ali, J.—This appeal arises out of a suit for ejectment in which the plaintiff also claimed mesne profits. The facts of the case are briefly these:

One Mangal Tatwa had some lands in mauza Ghargara in the district of Darbhanga. He died in 1321 and was succeeded by his widow who also died in 1327. Then his brother Dukharan came into possession of the lands and the plaintiffs purchased 2 bighas 10 kathas 8 dhurs of land from him by a sale deed dated 4th July 1921. The plaintiffs case is that plaintiff 1 who is the karta of the family settled one of the plots (plot 592) the area of which is about 5 kathas 15 dhurs with the defendants first party on batai for 1330 Fasli. The defendants, however, continued to be in possession of the land after giving produce for the year 1330 to the plaintiffs. The defendants'' case, on the other hand, is that Dukharan having abandoned the holding, the landlords obtained possession of it and the defendants who are thikedars under the landlords are accordingly in possession of the land. The Court of first instance believed the case of the plaintiffs and decreed the suit. The lower appellate Court also upheld the findings of fact arrived at by the Court of first instance, but dismissed the suit on the ground that it was barred by limitation. The question of limitation arose in this manner.

One of the points raised by the defendants was that according to the plaintiffs'' own case the defendants first party were under-raiyats and consequently they could not be ejected without being served with a notice to quit the land. To this the reply of the plaintiffs was that the plaintiffs were cosharer landlords in the village and that u/s 22, Ben. Ten. Act, the defendants first party must be treated as raiyats under them and not as under-raiyats. The view taken by the learned District Judge was that under Sob. 3, Ben. Ten. Act, a suit to eject a non-occupancy raiyat should be brougnt within six months of the expiration of the period for which the lands had been settled with the defendants first party and as the suit was not brought within six months, the defendants first party could not be ejected.

In my opinion the view taken by the! learned District Judge that the suit was barred by limitation under Schedule 3, is not correct. Article 1 (a), Schedule 3 provides the period of limitation for a suit to eject; a non-occupancy raiyat on the ground of the expiration of the term of his lease. Now, this article is to be read along with Section 44, Ben. Ten. Act, which says that a non-occupancy raiyat shall be liable to ejectment only on one or other of the grounds mentioned in the section and not otherwise. One of the grounds is mentioned in Clause (e) of the section which runs thus:

Where he (the non-occupancy raiyat) has been admitted to occupation of the land under a registered lease on the ground that the term of the lease has expired,

Thus the word "lease" as used in Article 1(a) must be taken to refer to a registered lease and as there was no registered lease in this case, it is clear that the suit cannot be held to have been barred by limitation under Article 1(a), Schedule 3, Ben. Tan. Act. There is, however, another difficulty which arises in this case. Once it is conceded that the defendants first party are non-occupancy raiyats, it must be held that u/s 44, Ben. Ten. Act, they are liable to ejectment only on one or more of the grounds mentioned Lin that section and not otherwise.

In this case it has not been shown that any of the conditions mentioned in. Section 44 are present and the defendant first party had made themselves liable to ejectment on one or more of the grounds mentioned in that section. That being so, it must be held that the suit has been rightly dismissed by the lower appellate Court.

The learned advocate for the appellant, however, contends that the lower appellate Court should not have treated the defendants first party as non-occupancy raiyats. I am afraid, however, this position cannot be consistenly taken up by the learned advocate for the appellant at this stage when it was urged on behalf of the appellants themselves before the District Judge that the defendants should be treated as non-occupancy raiyats, and when on that ground the District Judge was asked to hold that the defendants first party were not under-raiyats and that no notice to quid was in the circumstances of the case necessary. In my opinion the appeal must fail and be dismissed but without costs.

Chatterji, J.

I agree.