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BasiruddIn Haji and anr. Vs. Darbesh Khan Mea - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1116,96Ind.Cas.548
AppellantBasiruddIn Haji and anr.
RespondentDarbesh Khan Mea
Excerpt:
under-raiyat - right of occupancy--custom-proof. - .....to cultivators for the purpose of receiving rent instead of cultivating it himself. that was only one of the elements which the learned judge had to consider in coming to his conclusion on the question whether; or not the plaintiff was a raiyat. he summed up the evidence and said that, in his opinion, the plaintiff had shown that he was a raiyat. the argument when it is examined means that we are asked to hold that an inference on evidence of fact is a point of law which in a second appeal can be dealt with. that is not correct.3. in my opinion, there is no substance in any of the arguments advanced on behalf of either of the appellants, and both the appeals should be dismissed with costs.chakravarti, j.4. i agree.
Judgment:

Hugh Walmsley, J.

1. These two appeals arise out of suits for ejectment under the provisions of Section 49(6) of the Bengal Tenancy Act. In Appeal No. 2259, the appellants are the second and the seventh defendants, father and son. In appeal No. 2260, the defendant No. 2 alone is the appellant. I will deal, first, with Appeal No. 2259 and notice the arguments put forward on behalf of the son--the defendant No. 7. They are two. It is said, first of all, that his father gave him an under-raiyatee of some land which included plot No. 896 and that he built a house on that plot, and that because of the interest created in his favour by his father he ought to have received a notice from the plain tiff before the institution of the suit. This argument appears to me fallacious because the defendant No. 2 could not create a relationship between the plaintiff and defendant No. 7 which would have any binding effect on the plaintiff. The second argument is that, by virtue of this, sub-lease from his father, the defendant No. 7 has acquired an occupancy right in the land sublet to him. The learned Judge dealt with this point and said 'there is no evidence that he is a settled raiyat of the village.' Now, the acquisition of an occupancy right by an under-raiyat is not a normal thing. Proof has to be given of the existence of a custom in the neighbourhood which makes the growth of such a right possible; and, in any event, it is difficult to understand how such a right can accrue to a sub-lessee against the landlord. So much as regards the arguments put forward on behalf of the son.

2. On behalf of the father, there are two arguments which relate to the subject-matter of both the suits. The first is that the defendant No. 2 was a raiyat under the plaintiff's' landlord before the plaintiff's interest--whatever it was--was created. It is argued that, in consequence, this defendant continued to be a raiyat and that the plaintiff's interest must be something other than that of a raiyat: It is conceded, however, that there was a rent suit between the present parties in which the decision was that the defendant No. 2 was an under-raiyat under the plaintiff and it is further conceded that the defendant No. 2 has accepted that position for a number of years. It is impossible, therefore, for us now at this stage to hold that, as a matter of fact, this defendant is not an under-raiyat but a raiyat. The second argument is that the plaintiff has shown himself to be a tenure-holder by letting out the land to cultivators for the purpose of receiving rent instead of cultivating it himself. That was only one of the elements which the learned Judge had to consider in coming to his conclusion on the question whether; or not the plaintiff was a raiyat. He summed up the evidence and said that, in his opinion, the plaintiff had shown that he was a raiyat. The argument when it is examined means that we are asked to hold that an inference on evidence of fact is a point of law which in a second appeal can be dealt with. That is not correct.

3. In my opinion, there is no substance in any of the arguments advanced on behalf of either of the appellants, and both the appeals should be dismissed with costs.

Chakravarti, J.

4. I agree.


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