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Atal Rishi and anr. Vs. Lakshmi NaraIn Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in2Ind.Cas.417a
AppellantAtal Rishi and anr.
RespondentLakshmi NaraIn Ghose and ors.
Cases ReferredBinad Lal Pakrashi v. Kalu Pramanik
Excerpt:
bengal tenancy act viii of 1885), sections 44 and 45 - raiyat brought on land by ijaradar--non-occupancy raiyat--ejectment--raiyat obtaining possession from trespasser. - .....defendant, who, he contends, had no subsisting interest in the holding upon the termination of the ijara lease, inasmuch as under the terms of the ijara it was not competent to the ijaradar to grant a sub-lease which was to continue after the expiry of the ijara itself. the plaintiff argues in substance that the fourth defendant became a trespasser in april 1896 and is consequently no longer entitled to remain in occupation of the holding, because, as a general principal of law, a limited owner is not entitled to create a subordinate interest to continue after the termination of his own interest in the property. but though this may be assumed to be the general rule, the obvious answer to its application in the case of the plaintiff is that although the ijaradar had only a limited.....
Judgment:

1. This is an appeal on be-half of the plaintiff in an action for ejectment. The fifth defendant is the admitted owner of the property. In 1891 he granted an ijara to the first defendant which was to continue for five years from the 13th April 1891. On the 24th December 1892, the father of the plaintiff purchased a non-transferable occupancy holding from one of the raiyats on the property. It is conceded that this transfer could not be operative as against the landlord unless his consent was obtained. The first defendant, who was ijaradar at the time, refused, as a matter of fact, to recognize this purchase by the father of the plaintiff. He went further and took possession of the holding which he subsequently settled with the fourth defendant. Upon the expiry of the ijara in April 1896, the purchase by the father of the present plaintiff was recognized by the fifth defendant. On the strength of this recognition, the plaintiff now seeks to eject the fourth defendant, who, he contends, had no subsisting interest in the holding upon the termination of the ijara lease, inasmuch as under the terms of the ijara it was not competent to the ijaradar to grant a sub-lease which was to continue after the expiry of the ijara itself. The plaintiff argues in substance that the fourth defendant became a trespasser in April 1896 and is consequently no longer entitled to remain in occupation of the holding, because, as a general principal of law, a limited owner is not entitled to create a subordinate interest to continue after the termination of his own interest in the property. But though this may be assumed to be the general rule, the obvious answer to its application in the case of the plaintiff is that although the ijaradar had only a limited interest in the property, the moment he brought the fourth defendant on the land, the latter became a raiyat whose status is defined and whose rights are regulated by the provisions of the Bengal Tenancy Act. The possession of the fourth defendant, therefore, in its inception was lawful and as he became a raiyat he acquired the rights of at least a non-occupancy raiyat. He could, therefore, be ejected only if one or more of the grounds mentioned in Section 44 of the Bengal Tenancy Act, were made out. 'No such ground is established. If Section 45 which was in force when the rights of the parties accrued, is assumed to apply-this, indeed, is the view most favourable to the plaintiff-it is obviously of no avail. Section 45 provides that a non-occupancy raiyat can be ejected on the ground of the expiration of the term of his lease only if notice to quit has been served on him not less than six months before the expiration of the term. The section further provides that no suit for ejectment shall be instituted after six months from the expiration of the term. It is conceded that no such notice has been given in this case and the suit has been brought about eight years after the expiry of the term, if the defendant be treated as holding under a lease terminating at the same time as the ijara. The learned vakil for the appellant strenuously contended that it was a great hardship on the plaintiff that the fourth defendant, a sub-lessee under the ijaradar, who was not competent to grant a lease to last beyond the expiry of his own term, should be able to hold possession as against him. It may be pointed out, in answer to this, that in the case of Binad Lal Pakrashi v. Kalu Pramanik 20 C. 708 it was ruled by this Court that a raiyat who has obtained possession in good faith from a trespasser is entitled to be treated as a non-occupancy raiyat even as against the true owner : the present case is undoubtedly much stronger than the one which was before the Full Bench. We must, therefore, hold that the plaintiff, on the strength of the recognition of his purchase of 1892 by the zamindar in 1896, did not acquire any title to eject the fourth defendant, who had meanwhile lawfully entered into occupation as a raiyat under authority from the ijaradar. The appeal consequently fails and must be dismissed. There will be no order as to the costs of this hearing.


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