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Mitu Sheikh Vs. Amrita Lal Sen and anr. and - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in42Ind.Cas.546
AppellantMitu Sheikh
RespondentAmrita Lal Sen and anr. and ;parij Sheikh
Cases ReferredDwarkanath v. Tafazar Rahaman Sarkar
Excerpt:
bengal tenancy act (viii b. g. of 1885), section 180 and chapter vi - non-occupancy holding--utbandi tenant--lease of chur land for term of years, nature of. - .....j.1. this appeal arises put of a suit in ejectment brought by the landlords to recover certain chur land, on the allegation that the term of the lease in writing lender which the tenant held had expired. the land, as i have already said, is t chur land. the learned judge in the lower appellate court found that the lease was not admissible in evidence and he decided the rights of the parties apart from the contract of tenancy that they entered into but on the footing of accustom of utbandi the custom of utbandi is referred to in the various gazetteers or other official or demi-official work's. it is apparently a custom whereby the tenant takes the property for cultivation for a particular season. that clearly is not the tenancy in this case. s the tenancy here, according to the,.....
Judgment:

Fletcher, J.

1. This appeal arises put of a suit in ejectment brought by the landlords to recover certain chur land, on the allegation that the term of the lease in writing lender which the tenant held had expired. The land, as I have already said, is t chur land. The learned Judge in the lower Appellate Court found that the lease was not admissible in evidence and he decided the rights of the parties apart from the contract of tenancy that they entered into but on the footing of accustom of utbandi The custom of utbandi is referred to in the various Gazetteers or other official or demi-official work's. It is apparently a custom whereby the tenant takes the property for cultivation for a particular season. That clearly is not the tenancy in this case. s The tenancy here, according to the, contract between the parties, was for a term of 6 f years. The view of the learned Judge: that the lease between the parties cannot be, looked at is obviously wrong. The lease in this case was pleaded by the plaintiffs as the foundation of their suit, namely, that the term had expired and they were entitled to recover possession of the land. The lease, it is said, is of an utbandi nature. It apparently is nothing of the sort. The lease is a lease of chur land, the rent being payable at the rate of Rs. 2 per bigha in respect of such of the land as for the tim6 being is capable of being brought into cultivation; that is, when the land becomes dry, it is charged with rent during the continuance of the tenancy; The lease being a lease of chur land, the rights of the parties are governed under the provisions of Section 180 of the Bengal Tenancy: Act. Under that section Chapter VI of the Act does not apply to raiyats holding land under the custom of utbandi. But it dogs apply to 'chur land. The defendant in this case clearly does hot come under the category of raiyats holding under the custom of utbandi. He was cultivating under the provisions of the lease that is mentioned in the plaint, the expiration of which was the foundation of the plaintiffs' suit. To call the defendant an utbandi raiyit is altogether wrong, if utbandi means a person as described in these Gazetteers and the other official and demi-official works that have been referred to us. This is a man cultivating on chur land under the terms of a lease in writing which is not governed by any custom at all. Therefore, it seems to me quite clear that Chapter VI of the Bengal Tenancy Act does apply to this case. If Chapter VI does apply, the defendant either held under a registered lease or does not hold under a registered' lease. If he does not hold under a registered lease, then he cannot be ejected except on the ground that he has failed to pay the arrears of rent. If he holds under a registered lease---although apparently the lease in this case is not registered -then, under Article 1 (a) of Schedule III of the Bengal Tenancy Act, the suit is barred by limitation, it having been brought more than six months after the expiration of the term granted by the lease. In either view of the case, the tenant of this chur land is, in my opinion, clearly a non-occupancy raiyat to whom the provisions of Chapter VI do apply. It is not necessary for us to decide between the two conflicting decisions reported as Ganpat Mahton V. Rishal Singh 33 Ind. Cas. 978: 20 C. W. N. 14. and the other as Dwarkanath v. Tafazar Rahaman Sarkar 39 Ind. Cas. 64: 20 C. W. N. 1097: 44 C. 367. I am clearly of opinion that this defendant held this chur land under a lease in writing which regulated the rights of the parties and that those rights cannot be governed by the custom which the terms of the document must have expressly excluded. I think, therefore, that the plaintiffs are not entitled to recover possession of this land. We ought, therefore, to set aside the decree of the learned Subordinate Judge and restore the decree of the Munsif with costs in all Courts.

Newbould, J.

2. I agree.


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