Hari Nath Karmakar and others vs Raj Chandra Karmakar and another

Rampini, J.—The Plaintiffs bring this suit for the ejectment of the Defendants from a certain parcel of land. Their allegations are that there is a jumma standing in the name of one Madan Chandra Karmakar, which was owned by three persons, namely, Phakir Mahomed Sardar, Bhangar Sardar and Asgar Sardar, and each owned a one-third share of the jumma. The Plaintiffs purchased a one-third share of this land in 1864, and another one-third share that of Bhangar Sardar in 1873. Then they leased out the land to Defendant No. 17, who was dispossessed by the other Defendants, who are the Plaintiffs'' superior landlords, in 1871, and hence this suit, which is for proof of title and khas possession. The first Court dismissed the suit on the grounds both of title and limitation, and the learned Subordinate Judge has held the Plaintiffs'' title to the one-third share, alleged to have been purchased in 1864, not to be proved, but he has found the Plaintiffs to have established their title to the one-third share purchased by them in 1873, and has given them a decree for khas possession as against all the Defendants, except the Defendant No. 17, against whom a decree for symbolical possession is given.

The Defendants, except the Defendant No. 17, who has not appeared at all in the case, now appeal and contend : firstly, that the Plaintiffs have no cause of action; secondly, that the Lower Appellate Court should have found whether the Plaintiff Bhangar had any saliable or transferable interest in the land; thirdly, that the Lower Appellate Court ought to have decided the question whether the Plaintiffs'' purchase was a genuine transaction; fourthly, that the Plaintiffs are not entitled to absolute possession; and fifthly, that the Plaintiffs are not entitled to have the jumma sub-divided under the decree given them by the Lower Appellate Court, which amounts to a practical sub-division of the jumma.

Now, with regard to the first of these grounds, I need only say that the Defendants, other than the Defendant No. 17, are the Plaintiffs'' superior landlords. They have ejected the Defendant No. 17, and under the circumstances the Defendant No. 17 is entitled, if he chooses not to pay rent for the land, seeing that his lessor has not maintained him in peaceable possession of the subject of his tenancy. In short, there has been in this case an eviction from the land by title paramount. This undoubtedly gives the Plaintiffs a right to maintain their action.

I pass over the second ground of appeal for the present and go to the third ground, and it seems to me that the Subordinate Judge has meant to find that the Plaintiffs'' purchase of Bhangar''s share was a genuine transaction, for he says:--"The one-third share of Bhangar Sardar was, as appears from the evidence, purchased by the Plaintiffs under the registered kobala of the 15th Pous 1280, B.S., and they were in possession thereof till their dispossession in the manner stated above.

The Appellants'' fourth ground of appeal is that the Plaintiffs are not entitled to absolute possession. On this point the learned Subordinate Judge says:--"I should mention that the Plaintiffs are not entitled to obtain khas possession as against the Defendant No. 17, who is their tenant, though, as against any other Defendant, they are entitled to absolute possession without any condition being imposed upon it." By this, I think, that the learned Subordinate Judge meant that the Plaintiffs are entitled to khas possession against the Defendants, except the Defendant No. 17, who is his tenant, and subject to the finding as to the transferability of the tenure it would seem to me that the decree of the learned Subordinate Judge is quite correct.

The Appellants'' fifth ground of appeal is that the tenure has practically been subdivided. I do not think that the decree, which the learned Subordinate Judge has given to the Plaintiffs, has really this effect. There is no finding that the Plaintiffs are entitled to pay rent of the one-third share of Bhangar purchased by them, separately to the Defendants'' landlords, and therefore I cannot see that there has been any sub division of the tenure, practically or otherwise.

I must now come to the Appellants'' second contention, and it seems to me that it must prevail, for the learned Subordinate Judge has come to no finding upon the second issue raised by the Court of first instance as to whether the Plaintiffs'' vendor, Bhangar, had any saleable or transferable interest in the land.

The learned Subordinate Judge has said that this is a case of land used for residential purposes, and there can be no question as to its transferability.

Now, if the provisions of the Transfer of Property Act were applicable to this case, there is no question as to the correctness of this view of the learned Subordinate Judge, for the land not being agricultural land, the provisions of sec. 108, cl. (j) would apply. The Plaintiffs'' purchase is of prior date to the Transfer of Property Act, and it world seem, from the case of Beni Madhub Banerjee v. Jaikrishna Mukerjee 7 B. L. R. 152, that previous to the passing of the Transfer of Properly Act, non-agricultural lands might or might not have been assignable. That being so, it was incumbent upon the learned Subordinate Judge to come to a finding upon this question. The learned pleader for the Respondent argues that the land is stated in the Plaintiffs'' plaint to be kaemi bhita bari land and that the Plaintiffs'' have long been in possession of it, and that they have held possession of it from 1873 to 1893; and the learned pleader further contends that there is no denial on the part of the Defendants as to its not being bhita bari land. But in the first place, it seems to me that there was a denial on the part of the Defendants that the interest of the Plaintiffs'' vendor in the land was of a saleable and transferable nature, and that being so, it was for the Plaintiffs to prove that their vendor had an assignable interest in the land, notwithstanding the fact that the Defendants may not have in so many words denied that the land was bhita bari land. In the second place, all these arguments of the learned pleader for the Respondents are arguments which should have been addressed to the learned Subordinate Judge, who has not found, as a matter of fact, that the lands were originally leased by the landlord Defendants or demised for residential or building purposes This does not follow merely from the fact that the land is now so used, and it is impossible for me to come to a finding of fact of this nature. It is for the Lower Appellate Court to do so, and as the learned Subordinate Judge has failed to come to a finding upon this point, I am constrained to remand the case to him for an explicit finding on this question. I therefore affirm the judgment of the Lower Appellate Court on the other points, but I remand the case to him for an express finding as to whether the interest of the Plaintiffs'' vendor was transferable and saleable, and he will dispose of this case according to his finding upon this issue. Costs will abide the result.