Kangali Charan Mukharji vs Surja Narain Sah

Coutts, J.—This was a suit by a ghatwal for khas possession of Mouza Lapsadi in Pargana Patkum. The plaintiff''s case is that the mouza was originally held by one Bodh Singh Mura on a bemiadi ijara patta dated the 9th Jaith 1330. His interest was gold for arrears of rent and was purchased by the plaintiff, who sold it to one Nilkamal Mandal by a registered kobala in 1315. Nilkamal defaulted in payment of rent. The property was again sold and purchased by defendant''s father.

The plaintiff in this suit contended that the defendant''s right was only that of a tenant from year to year, and accordingly asked for khas possession. The defendant contended that, standing in the shoes of Nilkamal Mandal and Bodh Singh Mura, he had a heritable, permanent and transferable right. Both the Courts below found that the defendant had a permanent right in the mauza.

The point raised in this appeal on behalf of the plaintiff is that being a ghatwal, he was incompetent to create a permanent tenure, and that, therefore, the ijara which he granted to Bodh Singh was not a heritable, permanent and transferable right. Now the ijara having been granted by the plaintiff, he is estopped from alleging that the ijara did not create a permanent right if what it purported to grant was such a right. It is necessary to see, therefore, what the right created purported to be. The ijara is described as a bemiadi ijara and it is contended by the learned Vakil for the appellant, on the authority of Parshan Kuer v. Tulsi Kuer 39 Ind. Cas. 658 2 P.L.J. 180. 1 P.L.W. 447: (1918) Pat. 11, that a permanent tenure cannot be created by a bemiadi patta. This contention, however, is by no means supported by the judgment referred to. In that case what happened was that the defendant pleaded that because the patta was a bemiadi one, it created a permanent right, but the learned Judges held that a bemiadi patta, or lease without a term, did not necessarily create such a right; and on a consideration of the terms of the lease itself they came to the conclusion that it was not a permanent lease. That is a very different matter to saying that because a lease is a bemiadi one, it cannot, therefore, be a permanent lease. This contention, therefore, is unsustainable and so far as the present case is concerned we find it definitely stated in the Settlement, Report of the Patkum Pargana that bemiadi ijaradars hold permanent tenures with rent liable to enhancement; and in the Record of Rights this defendant has been described as a bemiadi ijaradar.

The findings of the lower Courts, that the defendant holds a heritable, permanent and transferable right, are clearly correct. I would accordingly dismiss this appeal with costs.

Macpherson, J.

I agree. In view of the kobala executed by him in favour of Nilkamal in whose shoes defendants stand, plaintiff at least cannot recover Lapsadih from defendants. Still less could he recover, if, as he avers (it is not necessary to decide with what truth), defendants stood in the shoes of Bodh Singh Mura, whose tenancy was at the lowest a bemiadi ijara of the class which in Pargana Patkum is a permanent tenure, and at the highest a mundari khunkati tenancy situated in plaintiff''s ghatwali tenure.