Biswambhar Mandal vs Nasarat Ali

Asutosh Mookrjee, C.J.—This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Newbould in a suit for ejectment.

The plaintiff-respondent is the putnidar of the property in litigation. He sued the raiyat under him for recovery of arrears of rent, obtained a decree and purchased the raiyati holding at the execution sale. He could not, however, obtain actual possession, as the appellant claimed to be in occupation as usufructuary mortgagee in possession from an under-raiyat. The plaintiff thereupon instituted this suit for recovery of possession. The defendant denied his title as the superior landlord, which, however, has been fully made cut. The defendant can thus resist the claim for ejectment, only upon proof that he has acquired a good title under his alleged usufructuary mortgage, but this he has failed to establish. The under-raiyati interest was prima facie non transferable, as is clear from the decision in. Bonomali v. Koylash Chunder 4 C. 135 : 2 Ind. Dec. (N.S.) 87, which was followed in Aminunnisa v. Jinnat Ali 27 Ind. Cas. 271 : 20 C.L.J. 548 : 42 C. 751 : 19 C.W.N. 43. As the under-raiyati interest was not transferable, the appellant, as the usufructuary mortgagee in possession thereof, acquired no title and the plaintiff has rightly been awarded a decree for possession.

The appeal is consequently dismissed with costs.

Fletcher, J.

I agree.