Makar Ali vs Shyama Charan Das and Others

The Appellant who is the purchaser of an estate at a revenue sale brought this suit to eject the Defendant alleging that he had no protected interest in the land. The tenant set up a right of occupancy and also stated that he had his dwelling-houses, tank and trees on the holding.

The first Court decreed the suit entirely, holding that the Defendant had failed to prove any right of occupancy or any protected interest,

The Subordinate Judge upheld the decision in so far as it related to the culturable lands, but held that the Defendant could not be evicted from such portions of the land as were covered by dwelling-houses, tank and trees, but the decree did not define the position of the lands which were held to be so protected. The Defendant, who is the Appellant before us, contends that, although he did not prove a right of occupancy, still as a non-occupancy raiyat, notwithstanding the provisions of sec. 37 of the Revenue Sale Law, he could not be ejected otherwise than on one or other of the grounds set out in sec. 44 of the Tenancy Act.

We need not decide whether sec. 44 in any way controls the provisions of sec. 37 of the Revenue Sale Law, because the answer to the Defendant''s contention is that the Courts below have found, although not perhaps very definitely, that the land held by the Defendant is the khas-khamar land of the estate and that under see. 116 of the Tenancy Act, sec. 44 would not apply to that land. If it be said that the nature of the land has not been distinctly decided by the lower Appellate Court, the answer is, I think, that the Defendant never pleaded protection under sec. 44 or contended that he was anything but a raiyat with a right of occupancy. Had he relied on sec. 44, the finding of the Court would probably have been more specific upon the point. The appeal of the Defendant fails. Then, there is a cross-appeal on the part of the Plaintiff as to the exemption of the lands covered by the dwelling-house, tank and trees. The Subordinate Judge does not find what the description of the dwelling-house is. It is said by the Munsif to consist of huts, and it is not alleged before us that it is anything more substantial. Nor does the Subordinate Judge say what the size of the tank is, but the area of the whole land from which it is sought to eject the Defendant is a little over one bigha and we are informed that the only evidence which there is as to the nature of the so-called tank is that it is some two or three cubits in extent. It is clear to us that a dwelling-house, to be exempted under sec. 37, must be a dwelling-house of a permanent character and that mere huts would not come within that description. As to the trees, the Subordinate Judge does not find that there is anything in the shape of a plantation or garden. All that appears from his judgment is that there are some trees on the land and for all that we know to the contrary these may be scattered here and there over the land. Further it is not found that there was any lease of the land, whereon the huts have been built and the tank has been dug, to bo protected. We think that, upon the findings of the Subordinate Judge, no case for the exemption of any portion of the land has been made out. The appeal of the Defendant fails and that of the Plaintiff''s succeeds with the result that the judgment of the Subordinate Judge must be set aside and that of the Munsif restored in its entirety with costs in this Court and in the Court below.