1. This is an appeal preferred by the plaintiff against the decision of the) learned Subordinate Judge of Chittagong, dated the 4th September 1916, affirming the decision of the Munsif at North Ranjan. The plaintiff sued in ejectment. The original plaintiff claimed as the purchaser of an estate at a revenue sale, the present plaintiff being the executor of his Will. The question is, whether the defendants have got an interest that protects them from ejectment. What is found is this. The present defendants more than twelve years prior to the institution of the suit obtained the property by a deed of gift from a lady named Kompani. Kompani apparently is found to have had the right of an occupancy raiyat. That is clearly a protected interest. The present defendants have been in possession for more than twelve years. The right of the landlord to maintain a suit for ejectment on the ground that the tenancy has been transferred without his, consent, if there is no custom of transfer, arose more than twelve years prior to the institution of the suit and the learned Judge of the lower Appellate Court, having regard to the fact that no question was raised in the Court of first instance as to whether there was a custom of transfer and also apparently, no doubt, in view of the fact that it was highly improbable that any person would permit a tenant or rather a person who had taken an invalid transfer from a tenant to remain in possession of the holding for twelve years or upwards without payment of rent, came to the conclusion that this point having been raised for the first time in the Court of Appeal ought not to be gone into. I am quite clear from the Munsif's judgment that as regards the other ground no serious contest was made in the Court of first instance. All the probabilities are in favour of the defendants having a right to stay upon the land. Having regard to the long period that has elapsed since the date of the deed of gift by Kompani. I am not inclined, after a period of over 4 1/2, years from the date trial de novo as prayed for by the learned Vakil for the appellant. I think in a case like this where 4 1/2 years have elapsed since the date of the institution of the suit and all the probabilities are in favour of the defendants having a right to stay on the land, we ought not to send the case back at this period to the primary Court to be re heard. In that view, the present appeal fails and must be dismissed with costs.
2. I agree.