Asmat Ali vs Hasmat Khan and others

What has been found in this case is that the Defendant took a lease of the tank without any of the surrounding land from the zemindar. When or by whom the tank was excavated is not disclosed. We think that a lease of the tank is not protected under clause 4, sec. 37, Act XI of 1859, as it is not within the meaning of that clause a lease of land whereon a tank has been excavated. We have been referred to the case of Ajgur Ali v. Asmut Ali I. L. R. 8 Cal. 110. But the conclusion at which we have arrived is not, we think, inconsistent with the decision of that case on the facts as stated. The Appellant further contends that he was entitled to a notice. It is sufficient to say that no question of notice was raised in either Court and it cannot, therefore, be raised now. The appeal is dismissed with costs.