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DabiruddIn Sarkar Vs. Afaddi Mamud - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1935Cal149
AppellantDabiruddIn Sarkar
RespondentAfaddi Mamud
Cases ReferredJogendra Nath v. Chandra Kumar
Excerpt:
- .....it must be a raiyati holding.3. he then quotes from the report of the rent commission on which the learned judges of this court relied and says:i have already stated my reasons for finding that the plaintiff is a raiyat owning a small holding. the defendant who holds under a raiyati holding can have no better status than that of an under raiyat simply because his holding is described as a chukani.4. he then refers to wilson's glossary and says that this word signifies an under tenant. he then holds that according to law the defendant is only an under raiyat. it seems to me that the learned subordinate judge was not entitled to come to a decision differing from that of the high court on a consideration of authorities not referred to in the reported judgment. they may or may not have been.....
Judgment:

McNair, J.

1. This is a suit for ejectment. The defendant in that suit is the appellant before mo. The case for the plaintiff was that the defendant was an under raiyat whose tenancy had been terminated by a notice to quit. The defendant denies that he received the notice. He says that the plaintiff is only one of several co-sharers and that the suit would not lie unless they are made parties to the plaintiff's suit. He also says that he has an occupancy right in the disputed land and he claims, in any case, to be entitled to compensation for improvements which he made on the property. The question as to notice to quit has been decided against the defendant. It has been decided by the lower appellate Court differing from the trial Court that there had been a partition between the plaintiff and his co-sharers some 10 or 12 years ago. The evidence and the reasonings on which the learned Subordinate Judge comes to his finding that the plaintiff is the sole landlord do not appear to me very cogent, but I am bound by his finding as it is a finding on a question of fact.

2. The only point which has been really contested in this Court is the question whether the defendant is or is not an occupancy raiyat. The trial Court considering the evidence which had been produced, particularly certain rent receipts, held that the defendant's father was a Chukani tenant of the disputed land. He pointed out that in the present case the defendant was treated as a tenant on the death of his father. He relied on rent receipts as showing that the jama had been in existence for more than 12 years, and relying on the case of Jogendra Nath v. Chandra Kumar 1914 Cal 661 he held that the defendant had got an occupancy right in the disputed land. The lower appellate Court appears to me to differ from the decision to which I have just referred. The learned Subordinate Judge says:

The authority does not seem to go so far as to lay down that the very description 'Chukani' signifies that it must be a raiyati holding.

3. He then quotes from the report of the rent commission on which the learned Judges of this Court relied and says:

I have already stated my reasons for finding that the plaintiff is a raiyat owning a small holding. The defendant who holds under a raiyati holding can have no better status than that of an under raiyat simply because his holding is described as a Chukani.

4. He then refers to Wilson's Glossary and says that this word signifies an under tenant. He then holds that according to law the defendant is only an under raiyat. It seems to me that the learned Subordinate Judge was not entitled to come to a decision differing from that of the High Court on a consideration of authorities not referred to in the reported judgment. They may or may not have been considered by the High Court in the case to which I have already referred, but this Court has given a decision which is clear as to the status of a Chukanidar in this very district. At p. 32 of the report their Lordships say:

There is therefore a permanent element in these Chukani rights which may develop into an occupancy right and they are freely saleable even before they dovelop into occupancy rights. In this case, if the defendant had such a right, it must have already matured into an occupancy right inasmuch as he had held this Chukani or so called Chukani for more than 12 years.

5. The learned Subordinate Judge seems to have differed from the decision of this Court when he refers to this particular Chukani and states that an occupancy right can be acquired by an under raiyat only by custom. He decides that no such custom was pleaded or proved in the case now before him. Their Lordships in the passage which I have already quoted definitely stated that a Chukani right in Rangpur matures into an occupancy right if held for more than 12 years. It has never been contested that the right here was a Chukani right. It has faintly been suggested in the argument before me that there was no evidence to that effect. But both the lower Courts have dealt with it as a Chukani right and undoubtedly that is the right which has been considered throughout the case. The findings of the trial Court have not been differed from by the lower appellate Court and they have not been challenged. It appears therefore quite clear that the defendant here had a Chukani right which has been in existence for more than 12 years and on the authority of the case of Jogendra Nath v. Chandra Kumar 1914 Cal 661 I hold that the Chukani has developed into an occupancy right. The result is that the defence must prevail. The decree of the lower appellate Court is set aside and that of the trial Court restored with costs in all the Courts.


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