W. Comer Petheram, C.J. and Ghose, J.
1. This appeal arises out of a suit brought by the plaintiff Baboo Kali Krishna Tagore, who is the zamindar of pergunnah Edilpore, against Golam Ally, the defendant, to eject him from certain lands situate in that pergunnah; and for a declaration that the defendant's allegation made in a previous suit between the parties, that he, the defendant, had a permanent howla interest in the lands is untrue. The plaint sets forth that the lands in suit, which are within a property named Haturea, were leased out to the defendant's father, one Mahomed Ashak in 1234 (1827) as a kursa or ordinary ryoti tenure to be held by him as a tenant-at-will; that the said tenure was not granted for agricultural purposes; that subsequently, in the years 1250 (1843) and 1264 (1857) respectively, two dowls or kabuliyats were executed by the said Mahomed Ashak in favour of the plaintiff's father, Baboo Gopal Lal Tagore, in respect of the said lands at enhanced rents, the rent reserved by the last dowl being Rs. 421-7-10 ; that subsequently, in a suit brought by the plaintiff in 1870 for rents of the years 1274 to Srabun 1277 (1867 to July 1870), the defendant set up and filed a permanent howladari lease, but at the same time admitting that he had been holding the land at the rent alleged by the plaintiff; that the Court which decided the suit did not consider it necessary to go into the question of the validity of the howla set up by the defendant, but decreed the claim for rent, there being in fact no dispute as to the amount thereof; that subsequently, in 1284 (1877), the defendant changed the features and character of a portion of the lands by digging tanks without the plaintiff's knowledge, which acts were contrary to the express stipulations of the dowl of 1264, and the custom of that part of the country; that thereupon a notice to quit was served upon the defendant on the 11th Assar 1289 (1882), requiring him to relinquish possession of the lands within fifteen days. The suit was brought upon the basis of the said notice to eject the defendant from the land hitherto held by him, and also to have it declared that the defendant was not entitled to the howla which he claimed.
2. The answer to this suit was that the notice was bad in law; that it was neither sufficient nor reasonable; that the dowls set up by the plaintiff were untrue; that the excavations complained of in the plaint were made sometime before the year 1284 from time to time, and that the plaintiff acquiesced in these acts; that in the year 1184 (1777) a remote predecessor of the plaintiff, namely, one Jaswant Rai, who was then entitled to the whole of the mouzah Haturea, granted to the defendant's grandfather, Sheikh Bomai, a permanent howladari pottah for 9 drones 14 kanies and odd of lands at a fixed rental of Rs. 421-7-10; that this rent had ever since been pai to the plaintiff's father and subsequently to the plaintiff; and that the fact of this howla was set up more than 12 years ago with the knowledge of the plaintiff an his father, the late Baboo Gopal LalTagore; and that, therefore, the plaintiff was now barred by limitation from questioning the howla. The written statement further contended that the meaning of the word 'kursa' as given in the plaint was incorrect; and that the tenants of pergunnah Edilpore, who had kursa rights, could acquire rights of occupancy by occupation for more than 12 years; that even upon the dowls filed by the plaintiff and the statements contained in the plaint it could not be said that the defendant was a tenant-at-will; and that, further, having continued to possess and enjoy the lands at a progressive rent for the reclamation of jungle, and without interruption from generation to generation, from before the Permanent Settlement, a right of occupancy had accrued to the defendant within, or subordinate to, the superior howladari interest.
3. The Court below has held that the person whose signature the notice to quit bears had no authority whatsoever to give such a notice; that the defendant's tenure is at least a tenancy from year to year; and, therefore, a notice given in the middle of the year, requiring him to quit within fifteen days, was not a reasonable and sufficient notice, and that, therefore, the plaintiff is not entitled to eject the defendant in this suit.
4. Upon the matter of the excavation complained of in the plaint, the Subordinate Judge has found that the tanks were dug many years ago without any let or hindrance on the part of the zamindar, and has accordingly held that no ground for ejectment on this score is made out.
5. The title of the plaintiff to eject having failed, the Court below had next to consider whether or no the plaintiff was entitled to declaratory relief in respect of the howla set up by the defendant. Upon this question the Subordinate Judge has found that the lease set up by the defendant, that is to say, the howladari pottah of 1184, is a forged document, but that the existence of the howla, though not proved to be held at a fixed rent from before the Permanent Settlement, is made out by the various rent receipts produced by the defendant, which described the tenure as a howla tenure, and that the said receipts were granted apparently with the knowledge of the naib and Other superior officers of the plaintiff; and it must, therefore, be inferred that the plaintiff and his father were aware of the face that a howladari title had been set up many years ago, that is to say, more than 12 years ago; and, therefore, both upon the ground that the defendant has made out that he has a howla right in the property in question, and also upon the ground that the said howla had been set up more than 12 years before suit, with the knowledge of the zamindar, the plaintiff is not entitled to question, and is, in fact, barred by limitation from now questioning the said howla. As regards the two dowls of the years 1250 and 1264 produced by the plaintiff, as having been executed by the defendant's father, Mahomed Ashak, the lower Court has found that they are untrue, and have been manufactured on the occasion of the rent suit of the year 1870. Having come to these conclusions, the Subordinate Judge has dismissed the suit with costs.
6. The plaintiff has appealed to this Court; and we might here observe that no contention has been raised before us as to the notice served upon the defendant being valid in law, nor that the plaintiff is entitled to eject by reason of the excavations made by the defendant.
7. The points that have been raised by the learned Counsel for the appellant are: (1) that the setting up by the defendant of a permanent howladari right in the property in question amounted to a denial of the ordinary rights of the zamindar; and, therefore, the defendant must be taken to have forfeited his tenure; and the plaintiff is, therefore, entitled to eject the defendant without any previous notice to quit; (2) that the foundation upon which the howladari title was based having failed, namely, the lease of the year 1184 having been found by the lower Court to be a manufactured document, the Subordinate Judge ought, consistently with his finding, to have found that the defendant was entitled to no howladari interest in the lands; (3) that the rent receipts relied upon by the lower Court have not been proved according to law, and are not genuine; (4) that there is no proof whatsoever that, as a matter of fact, the howladari lease of 1184 was set up at any time with the knowledge of the plaintiff or his father previous to the suit of 1870, and therefore the plaintiff is not barred by the law of limitation from now questioning the said howladari title; (5) that the dowls produced by the plaintiff ought to have been found by the lower Court to be genuine; and. lastly, that even if the plaintiff be not entitled to eject the defendant, he is, at any rate, entitled to have a declaration to the effect that the howladari title set up by him is untrue.
8. The learned Advocate-General for the respondent, in the course, of his arguments in support of the decree of the Court below, contended, among other matters, that the plaint disclosed no cause of action, and that the Court below ought to have found that the howladari lease of 1184 was a genuine instrument.
9. Upon the arguments raised before us, it would appear that there are two questions of law, and three questions of fact involved in this appeal.
10. The questions of law are: (1) does the plaint disclose a cause of action; and (2) whether, in the absence of a notice to quit, is the plaintiff entitled to eject
11. The questions of fact are: (1) whether the defendant is entitled to the howla which he claims; (2) whether the howla was set up more than 12 years ago with the knowledge of the plaintiff or his father; and (3) whether the defendant's father executed the dowls produced by the plaintiff.
Miss tiff 701-702