1. This is an appeal by the defendants against the decision of the District Judge of Murshidabad reversing the decision of the Munsif of Lalbagh. The suit out of which this appeal arises was one for declaration of title and for khas possession on the ground that the defendants had denied the plaintiffs' title and possession. The defence put forward by the defendants was that the plaintiffs held the property benami for them. The First Court dismissed the suit holding that the transaction was a benami one and the plaintiffs were the benamidars of the defendants. The second Court set aside this finding and the suit was decreed with costs.
2. The point raised before us on behalf of the appellants is that in view, of the statement contained in the plaint the decree for ejectment should not have been passed. Now, in para. 4 of the plaint the plaintiffs made the following allegations that the defendant took an under-raiyati settlement of the half share of Mobarak Hossain of the land described in schedule lea. at an annual rent of 3 bighas 14 aris of thika paddy and by that right came into possession and paid the thika paddy for the year 1324. As I have already stated the appellants say that after the statement by the plaintiffs in the plaint they cannot deny now that the appellants are karfa tenants and it is said that accordingly they cannot be ejected in the manner in which the lower Appellate Court has decreed the suit. Under the provisions of Section 49 of the bengal Tenancy Act an Under-raiyat shall not be liable to be ejected by his landlord, except (a) on the expiration of the term of a written lease; (b) when holding otherwise than under a written lease, at the end of the agricultural year next following the year in which a notice to quit is served upon him by his landlord. This being so I think the contention of the appellants is correct and the decree for khas possession passed by the learned Subordinate Judge is incorrect.
3. It was urged before us on behalf of the respondents in reliance on a case of Sutyabhama Dassee v. Krishna Chunder Chatierjee 6 C. 55 : 6 C.L.R. 375 : 3 Ind. Dec. (N.S.) 36 that despite the provisions of Section 49 as the defendants had denied the plaintiffs' title they were liable to be ejected. At the time when this decision was given there was no such provision such as is now to be found Section 49 of the Bengal Tenancy Act.
4. In. the circumstances, therefore, we think that the learned Judge was wrong in passing a decree for khas possession but we think that if the appellants rely as they do upon the statement of the plaintiffs contained in para. 4 of the plaint they must accept this as a whole and this being so, they; are clearly liable for rent at the rate stated in that paragraph and in para. 7 of the plaint.
5. The result is that the appeal succeeds to this extent that there will be no decree for khas possession. We declare that the defenders are car a tenants under the plaintiffs. There will be, a further decree in favour of the plaintiffs against the defendants for the sum of Rs. 148 being the rent claimed in the suit. The order for costs in both the Courts below will stand. We make no order as to costs in this Court.