Jogendra Nath Karon vs Nistarini Dasi and Another

Nasim Ali, J.—This appeal arises out of a suit for ejectment after service of notice to quit u/s 106, T.P. Act. Various defences were taken by the defendant. They were all overruled by the trial Court and the suit was decreed. The defendant appealed to the lower Appellate Court. A new point was raised by the defendant before the learned Judge. It was argued before him by the defendant that the suit was bad for partial ejectment as the disputed land formed part of a bigger tenancy. This defence was accepted by the Judge with the result that he dismissed the suit as bad for partial ejectment. Hence this second appeal by the plaintiff. The only point raised by the learned advocate for the appellant is that the lower Appellate Court erred in law in making a new case for the defendant in appeal. This contention is well founded. The story that the disputed land was part of a bigger tenancy at the date of the service of notice to quit was never pleaded by the defendant in his written statement. In fact it is clear from the evidence in this case that the original tenancy of 3 cottas was partitioned between the three cosharer landlords and thereafter on the basis of that partition plaintiff obtained a decree for rent in respect of the disputed land only against the defendant in the presence of the other cosharer landlords. It is not now open to the defendant to plead that there is any relationship of landlord and tenant between the plaintiff and the defendant in respect of the other portions of the original holding. The defendant was fully aware of the partition between the cosharer landlords as well as of the apportionment decree to which he was a party and it was evidently for this reason that this defence was not raised before the trial Court. The lower Appellate Court was not therefore justified in allowing the defendant to raise a new plea to defeat the plaintiff''s suit for ejectment. The result therefore is that this appeal is allowed. The judgment and decree of the lower Appellate Court are set aside and those of the trial Court restored with costs in this Court as well as in the lower Appellate Court.