1. This appeal is by the plaintiffs. They instituted the suit in order to recover khas possession of the land after service of notice under Section 167, Ben. Ten. Act. They had purchased a certain raiyati interest. The defendant is holding an under-raiyati. His case was that he had a right of occupancy by custom and in this he is supported by the Record of Rights. The plaintiffs denied the existence of any such custom but both the Courts have held that they failed to rebut the presumption that the Record of Rights was correct.
2. Mr. Sen has contended that such a right, i.e., a right of occupancy existing by custom is not a protected interest' within the meaning of Section 160(d), Ben. Ten. Act, when the under-raiyati was created in contravention of the provisions of Section 85. This contention is supported by the decision of Mitter, J., in the case reported in Kamini v. Nepal 1932 Cal 389 and that decision has been approved by a Division Bench in Sonatan Dafadar v. Daulat Gazi 1932 Cal 571. On behalf of the respondent it is argued that this point cannot be taken for the first time in this Court. Of course, if it were necessary to take evidence or to make assumptions in favour of the appellants before the point could be decided it would not be possible for the appellants to raise it here for the first time. But the lease itself is already on the record and it contravenes the provisions of Section 85. As the point is a point of law, it can be taken in this Court.
3. The result is that the appeal is allowed, the decrees of both the lower Courts dismissing the plaintiff's claim for khas possession are set aside and they will be given a decree for khas possession. The appellants will get their costs in this Court. As the respondent did not appear in the lower appellate Court, there will be no order as to costs in that Court. The respondent asks for leave to appeal. This is refused.