1. This appeal arises out of a suit for khas possession of some land on establishment of the plaintiff's title thereto. The allegations on which the plaintiff brought the suit were that he bad obtained settlement of the land from two persons, Kanai and Dwijabar, by a patta in the year 1327 B.S. and that after he was in possession of the land for some time he was dispossessed by the defendants in the year 1330 B.S. The defence inter alia was that as Kanai and Dwijabar's interest in the land was that of a raiyat only the patta obtained by the plaintiff was void under the provisions of Section 85, Ben. Ten. Act, and that the defendants themselves had obtained a lease of the land from the widows of Kanai and Dwijabar in the year 1330 B.S. Both the lower Courts held in favour of the plaintiff and gave him a decree. The defendants have appealed to this Court.
2. It appears that the plaintiff as well as the defendants claimed the land in suit under registered leases in contravention of Section 85, Ben. Ten. Act, and the contention of the learned vakil for the appellants was that, that being so, the plaintiff could not succeed in ejectment against the defendants who were in the advantageous position of a defendant in possession. And in support of this contention he placed reliance on the cases of Telam Pramanik v. Adu Shaikh  17 C.W.N. 468 and Jarip Khan v. Dorfa Bewa  17 C.W.N. 59. On behalf of the respondents reliance was placed on the decisions in Gour Mondal v. Peari Maghi  22 C.W.N. 61, Ganesh Mandal v. Thanda, Namasundrani  24 C.L.J. 539 and Nibaran Chandra Mirdha v. Ram Charan Mondal  29 C.L.J. 479. The question for determination, therefore, is which of these two sets of rulings should be applicable to the facts in the present case. The learned vakil for the appellants urged that the present case would fall within the decision in Garip Khan v. Dorfa Bewa  17 C.W.N. 59, inasmuch as the plaintiff based his case on the pattah of the year 1327 B.S., which was inadmissible in evidence. I am unable to agree with the learned vakil in this view of the matter. The plaintiff did not base his case on the patta alone, but his case was and this is also the finding of the learned District Judge that he was in possession of the land as well. As has been pointed out by Fletcher, J. in Ganiesh Mondal v. Thanda Namasundrani  24 C.L.J. 539, where a tenant cannot or does not produce his lease in writing, he can never the less, establish his tenancy from possession and other circumstances. The present case, therefore, in my opinion, does not fall within the decision of the case reported in Garip Khan v. Dorfa Bewa  17 C.W.N. 59, but falls within the decision of Manik Borai v. Bani Charan Mandal  13 C.L.J. 649. In the case of Gour Mondal v. Balaram Manji  22 C.W.N. 61, it has been held that although and under-raiyat's lease is in excess of what a raiyat is entitled to grant to an under-raiyat under the provisions of Section 85, Ben. Ten. Act, yet, if the under-raiyat was in possession of the property on the basis of the kabuliyat he has sufficient interest in the property to recover the land. On the authority, therefore, of the cases in Ganesh Mandal v. Thanda Namasundrani  24 C.L.J. 539, Nibaran Chandra v. Ram Charan Mondal  29 C.L.J. 479, Gour Mondal v. Peary Majhi  22 C.W.N. 59, I hold that the plaintiff in the present case was entitled to a decree.
3. The present appeal, therefore, in my opinion, fails and must be dismissed with costs. There has been an application for leave to appeal under Section 15, Letters Patent. The application is allowed as I consider the case to be a fit one for such an appeal.