Babua and Others vs Musammat Sarli

Chamier, C.J.—This is an appeal u/s 10 of the Letters Patent against a judgment of Mr. Justice Mullick. It arises out of a suit brought by the respondent for rent of two small plots of land. The respondent claimed to be raiyat of the land and she alleged that the defendants are her under-raiyats and liable to pay rent to her. The appellants denied that they were under-raiyats of the respondent and pleaded that she had no right to institute the suit. They alleged that their father had purchased the land in 1898 from one Palak, the nephew and heir of one Newaz, who was, according to the case of both parties, formerly raiyat of this land. Both the Munsif and the Subordinate Judge held definitely that the respondent''s allegations had been established that whether or not Palak was the legal heir of Newaz, it had been proved that the respondent stepped into the shoes of Newaz who was her father-in-law and had been in possession of his land, including the land now in question, for a large number of years. Both Courts held definitely on the evidence that the appellants had failed to prove that they ever held this land as raiyat of the landlord. A second appeal to this Court was dismissed by Mr. Justice Mullick on the ground that a second appeal was barred u/s 153 of the Bengal Tenancy Act. It seems to me that the Courts below decided a question of title to land between parties having conflicting claims thereto and that a second appeal did lie to this Court. The case indeed seems to be covered by authority, but, in my opinion, the appeal to this Court ought to have been dismissed on the ground that both Courts below held definitely on the evidence that the present respondent had proved that she had been in possession of the land as raiyat since at least 1304 Fasli and was, therefore, entitled to recover rent from the appellants. I would, therefore, dismiss this appeal with costs.

Sharfuddin, J.

I agree.