Fayj Dhali and Others vs Aftabuddin Sirdar and Others

This is an appeal against a decision of the Subordinate Judge of Khulna, dated the 26th of May, 1900. The suit was one for khas possession of certain lands; and the lower Appellate Court has given the Plaintiffs a decree.

Certain of the Defendants now appeal. Two of them (Defendants Nos. 4 and 7) are said to be dead : so that the appeal now proceeds only at the instance of the other Defendants.

The facts of the case are these ; In a previous rent suit between the parties it was decided that the Defendants were not the Plaintiffs'' tenants. The Plaintiffs now bring this suit to eject the Defendants.

The Court of first instance held that, as a matter of fact, the Defendants were the Plaintiffs'' tenants ; and, so relying on the case of Dhora Kairi v. Ramjeevan Kairi I. L. R. 20 Cal. 101 (1890) it dismissed the Plaintiffs'' suit for khas possession.

The Subordinate Judge has, however, given effect to the ruling in the case of Nilmadhab Bose v. Ananta Ram Bagdi 2 C. W. N. 755 (1898) to the effect that "the rule that a denial of the relation of landlord and tenant does not entail forfeiture, does not apply where that denial is given effect to by a decree of Court."

The learned pleader for the Appellants contends that the Subordinate Judge should not have followed this ruling, and that the decision in this case is in conflict with that in the case of Dhora Kairi v. Ramjeevan Kairi I. L. R. 20 Cal. 101 (1890) and he invites us to refer the matter to a Full Bench. We, however, think that there is no conflict between the two cases and that the Subordinate Judge has rightly followed the more recent ruling. It has been found, as a matter of fact, that in the previous suit between the parties the Defendants were not tenants of the Plaintiffs, and the parties in this suit, that is to say, both the Plaintiffs and the Defendants plead that the Defendants are not tenants of the Plaintiffs. That being so, it seems to us that the Munsif should not have found in favour of the Defendants a fact which they themselves in their pleadings deny. Furthermore, we think that the Defendants are now estopped by a matter of record from pleading that they are the Plaintiffs'' tenants ; and that being so, the Plaintiffs are quite entitled to turn them out and take khas possession of the land. The appeal is dismissed with costs.