Mahabir Misser vs Mt. Aso(sic) Kuer and others

Das, J.—This appeal arises out of a suit u/s 105 of the Bengal Tenancy Act for correction of certain entries made in the finally published Record-of-Right. We are in this appeal concerned only with two plots, viz., plot No. 1140 and plot No. 1138; being an orchard. The Court of first instance found in favour of the plaintiff in respect of these two plots of land. The lower appellate Court, however, has reversed the decision of the Court of first instance.

The plaintiff claims as the chela of Janak Das in whose favour, according to him there was a grant of certain lands by the predecessors-in-title of the defendants. Both the Courts have come to the conclusion that the plaintiff is not the chela of Janak Das. That finding is a finding of fact which is binding on me in second appeal. But it is urged on behalf of the appellant that, the plaintiff having been in possession of these two plots for some years and having pulled down the old building and built a new house on plot No. 1140 he is entitled, to retain possession of these two plots of land. According to him there is no such thing as permissive possession under the Bengal Tenancy Act and that as he was a settled raiyat of the village he acquired an occupancy right to these plots by being allowed by the landlord to retain possession of them. Now, in my opinion, the appellant cannot be regarded as a tenant at all. A ''tenant'' as defined in the Bengal Tenancy Act "is a person who holds land under another person and is, or but for a special can tract would be, liable to pay rent for that land to that person." The learned Judge in the Court below has come to the conclusion that the plaintiff did not hold any land under the defendants and that it has not been suggested that there was any special contract between the plaintiff and the defendants. The plaintiff would, therefore, not be liable to pay any rent for that land to the defendants. The Bengal Tenancy Act is in no sense exhaustive. It may be that the plaintiff, who looked after Janak Das during his lifetime, was allowed by the defendants to retain possession of these plots of land; As regards the case of the plaintiff, that he built the house on plot No. 1140, the lower appellate Court has found against him. The learned Vakil for the appellant contends that the learned Judge in the Court below misread the documents which were, filed on his behalf. That may be so but we are not in second appeal entitled to reverse the decision of the lower appellate Court merely on the ground that it misread the evidence that was adduced on behalf of the plaintiff. The document, upon which the learned Vakil for the appellant rely, are not documents of title and accordingly misconstruction of those documents is not a point of law which would justify this Court in interfering with the decision of the Court below.

In my opinion the appeal involves question of facts and as these facts hare been decided against the appellant by the learned Judge in the Court below I must dismiss this appeal and dismiss it with costs. The analogous appeal is not pressed. That appeal, viz., Second Appeal No. 204 of 1920, must also be dismissed but without costs.