The suit out of which this appeal arises was brought to recover possession of certain lands.
The Plaintiff is the transferee of the interests of the former owner of the land, who granted a lease of it to one Bama Sundari Debi, the mother of the Defendant No. 1. In a suit in 1877 between the predecessor of the Plaintiff and Bama Sundari a solenamah was entered into by which the Plaintiff in that suit granted a mokurari jama to Bama Sundari at a rent of Rs. 21-3 for her lifetime reserving the right to reenter after death. Bama Sundari Debi died in 1902, and her daughter and another person are now in occupation. The present Plaintiff therefore sues to establish his right of re-entry and to eject the Defendants.
The lower Courts have found that the Defendants occupy the position of occupancy raiyats and cannot be ejected; and, furthermore, that it was necessary before ejecting them to give notice to quit.
The Plaintiff now appeals to this Court, and the learned pleader who appears on his behalf calls attention to the terms of the soltnamnh, dated the 5th January 1879. In this solenamah the following words occur:—After my death the immoveable property left by Chandra Sekhar, which the Plaintiff has settled with me, the Plaintiff will take khas possession of them all. None of the heirs and representatives, i.e, to Bay, I, Nistarini, my sons and grandsons and so forth will ever raise any objection or prefer any sort of claim to that. If any such claim be preferred the same shall be inadmissible.”
It is to be noted that this contract was made not only by Bama Sundari, the mother of the Defendant No. 1, but that the Defendant No. 1 herself was a party to it. It, therefore, appears to us that seeing that it was made before the passing of the Bengal Tenancy Act, the contract was a perfectly legal and valid one under the provisions of sec. 7 of Act VIII of 1869, B.C, which was the rent law then in force. Furthermore, there is nothing in sec. 178 of the Bengal Tenancy Act which debars a tenant from making such a contract with her landlord. This contract was made before the passing of the Bengal Tenancy Act. Therefore it does not come within the prohibitory terms of sub-sec. (3), cl. (a) of sec. 178 of that Act. Nor does it come within the terms of cl. (a), sub-sec. (1) of sec. 178, because it does not purport to bar in perpetuity the acquisition of an occupancy right by Bama Sundari. It bars the acquisition of an occupancy right during the lifetime of Bama Sundari, but that is not in perpetuity. In these circumstances, under the terms of the solenamah it appears to us that Bama Sundari during her lifetime was not an occupancy raiyat and that the Defendants who are now in occupation of the land never having paid rent to the Plaintiff and never having been recognised by the Plaintiff as tenants of the land, are not in the position of raiyats, but of trespassers. They can therefore be ejected as no notice to quit was necessary to be given to them.
We must, therefore, under these circumstances decree this appeal and remand the suit to the Court of first instance to determine the other issues which arise in it.
The costs will abide the result.
N.G
Case remanded.