Chigu Chaudhuri vs Srimatya Chand Moni Debya and Another

Coutts, J.—This was a suit for declaration of the plaintiff''s jote patta right to Mauza Kudatand and for khas possession of that mauza including the man lands. The proprietor of this mauza is Raja Lakhi Narain Singh, the pro forma defendant, whose estate was under the management of the encumbered estates until 1313. In the year 1314 the pro forma defendant gave an ijara settlement of the mauza to the principal defendant No. 1. Chigu Chaudhuri, for a term of nine years. The ijara expired in 1323, but before that date the pro forma defendant granted to the plaintiff a permanent lease of the entire mauza by a jote patta, by virtue of which the plaintiff claims to be entitled to khas possession of the mauza from the year, 1323, but having failed to obtain possession from the defendant No. 1, the ijaradar, he has brought this suit.

The main contentions of the defendant No. 1, who contested the suit, were that the plaintiff''s jote patta was not a bona fide document, and that this defendant held a permanant ancestral ijara right in the mauza. The suit was decreed in the Court of first instance and this decree was confirmed on appeal. The defendant No. 1 has again appealed to this Court.

The findings of fact arrived at by both the Courts below are that the plaintiff''s patta is bona fide and that the defendant No, 1 has not any permanent ancestral ijara right in the mauza. These are findings of fact with which we cannot interfere in second appeal, but we are asked by the learned Vakil who appears for the appellant, to find that the defendant No, 1 has acquired some sort of tenancy in the man lands of the mauza and that he cannot be ejected therefrom without notice. It appears that the defendant No 1 first got an ijara of this village from 1291--1296 After that the plaintiff''s case is that he remained in possessoin from, 1296--1305 without any ijara, that he then had an ijara from 1305--1313 inclusive, and that in 1314 he got the ijara to which I have already referred. The mauza consisted partly of lands in occupation of tenants and partly of man lands, and it is not contended that the defendant cannot be ejected from that part of the mauza of which he is in possession by collection of rent, but it is contended by the learned Vakil for the appellant that he has acquired some tenancy right in the man lands. At first he contended that the right which he bad acquirad was an occupancy right and in support of his contention he relied on Narpat Singh v. Hungra Munda 11 Ind. Cas. 368 : 16 C.L.J. 30 : but he subsequently abandoned this position and urged that it was merely a tenancy right, of what kind be was not prepared to say, beyond that it was sufficient to give him a right to notice before being ejected. In this view of the case it is necessary to discuss the case of Narpat Singh v. Hungra Munda 11 Ind. Cas. 368 : 16 C.L.J. 30, and I need only say that it is clearly distinguishable from the present case, and I fail to see how the defendant No. 1 has acquired any kind of tenancy right which would continue after the expiry of the lease. The lease was an ijara lease of the whole mauza including the man lands, and when the period of the ijara expired, it expired in respect of the man lands as well as of the land in occupation of the tenants. It is sure that defendant No. 1 held the man lands as remuneration for collecting rent, but he in no sense became raiyat thereof, and I am unable to see what kind of right he could have acquired which would have entitled him to a notice.

It has been suggested that the ijara of 1314 did not create a new tenancy but that the defendant No. 1 had obtained a right by being in possession of the land from 1296--1313 without any ijara : but it is not a fact that he was holding the land for this period without a patta, for it is found distinctly by both the Courts below that an ijara was granted to him in 1305 and he was apparently holding under that patta up till 1313. This contention, therefore, fails.

In the result then I. see no reason to interfere with the decision of the lower Appellate Court and would dismiss this appeal with costs.

Macpherson, J.

I agree. The claim of appellant, the late ijaradar, before us is to tenancy in the man lands. There could, of course, be no tenancy in those lands apart from the ijara tenancy of the village, the., profits whereof they represent. The report in Narpat Singh v. Hungra Munda 11 Ind. Cas. 368 : 16 C.L.J. 30 is inadequate. Moreover, the circumstances and the tenancy in that case, a khuntkatti tenancy with permanent right on which a patta setting forth the rent had been superimposed, are altogether different, from the present case, as may be seen from Second Appeal No. 1827 of 1915 decided by this Court on the 23rd April 1917.