P L D 1964 Dacca 188 (PLP)

"Defendant No. 3, Kishori Mohan who was in Pakistan even on 3‑11‑54 Exh. (a) has not come before the Court to state on oath that he was not the agent of defendants Nos. 1, 2 and 4‑6 and that he also never looked after their properties. So I hold that he was the agent of defendants Nos. 1, 2 and 4‑6 and consequently tender of the notices meant for them as the service return Exh. 4 indicates, is a good tender. But as he refused to accept the notices of annulment and as there was no likelihood of defendants Nos. 1, 2 and 4‑6 being found at their residence in Pakistan, the process server rightly served the notices by affixing them on the Sadar door of the houses of the defendants in pursuance of Order V, rule 17, C. P. C."

6. Thus the said Court appears to be clearly of the opinion that it is established by the materials on record (1) that defendant No. 3 was in charge of the properties of defendants Nos. 1, 2, 4, 5 and 6 who had migrated to India and further (2) that he was also authorised to receive processes on their behalf and in that view of the matter, has held that service of the disputed notice upon defendant No. 3 constituted valid service upon the other defendants mentioned above. It is important to note that in making these findings the trial Court has relied solely upon the evidence on record. On a decision of the evidence the learned Subordinate Judge, too, appears to have agreed with the trial Court and further pointed out that the presumption of due service of notice "arising out of the order sheet, Exh. 5, and the peon's return, Exh. 4, must stand," i.e., could not be said to have been rebutted. In my opinion, the said presumption attaches not merely to the factum of service but also to the manner in which the process in question is reported to have been served and that, in the present instance, includes the fact reported by the process- server that service was effected upon defendant No. 3 who was the agent of defendants Nos. 1, 2, 4, 5 and

6. In this view of the matter, therefore, reliance placed by the learned Subordinate Judge upon the said presumption cannot be said to be unjustified. In any cases, the proved or rather unchallenged fact remains that defendant No. 3 was the agent in charge of the properties involved of the above‑mentioned defendants and accordingly, the service effected upon him for and on behalf of the latter was valid service under the law, already referred to above.

7. In this connection Mr. Azizul Islam has further urged that, in any event, there was no service at all at least in respect of the lands appertaining to Mouzas Chota Gangni and Shibpur (Khatians Nos. 99 and 222 respectively). Before proceeding to deal with this contention, I would like to observe incidentally that it appears to have been assumed all throughout that the disputed lands of all the three Mouzas constituted one single holding bearing the rental of Rs. 22 per annum. That, however, is not so. There are, in fact, three distinct holdings, though, assessed to one consolidated jama or rental, to wit, Rs. 22 per annum. Assessment of one consolidated rental for a number of separate holdings, which is not at all uncommon, cannot convert are have the effect of converting those holdings into one single holding. Turning now to the argument of Mr. Islam as to non- service of notices under section 167 of the Bengal Tenancy Act in respect of the lands appertaining to the said two Mouzas, I must say that the same appears to be well‑founded. From the relevant documents on the record including the application filed for issue on the said notices, it is clear that the lands of Chota Gangni and Shibpur were not included at all. It would thus appear that annulment was not even prayed for in respect of those lands, which, as I have already pointed out, constitute two independent holdings. Mr. Guha has, however, argued that whether service was or was not effected in respect of a particular parcel or parcels of lands is a question of fact which not having been agitated or made an issue before either of the two Courts below cannot be raised at this stage. I cannot see my way to accept this argument and in this connection would only refer to the case of Jagadish Narain and others v. Nawab Said Ahmad Khan and others (50 G W N 477) wherein their Lordships of the Judicial Committee observed as follows :‑

"The High Court held that this defect in the title of the plaintiffs had not been pleaded by the defendants, and expressed the view that the Subordinate Judge, had made out a case for the defendants which was not foreshadowed in the written statements and was not set up at the trial. Their Lordships are quite unable. to agree with the High Court in this view. The plaintiffs were suing in ejectment, and they could only succeed on the strength of their own title. There was no obligation upon the defendants to plead possible defects in the plaintiff's title which might manifest themselves when the title was disclosed. It was sufficient that in the written state ments the defendants denied the plaintiffs' title and under this plea they could avail themselves of any defect which such title disclosed."

8. In this case before me, too, the defendants denied the factum of alleged service and are, therefore, entitled under that plea to resist the claim of the plaintiffs‑opposite‑parties on the lacuna mentioned above. In my opinion, therefore, there has been no annulment of the interest recorded in Khatian No. 99 of Mouza Chota Gangni and Khatian No. 222 appertaining to Mouza Shibpur and, as such, the decree granting the plaintiff‑opposite-parties khas possession in respect thereof cannot be sustained.

9. Lastly, it has been contended that the interests of the under‑raiyats in lands in respect of which they have occupancy rights or whereon they have homestead or gardens are protected i.e., non‑annulable, within the meaning of section 160, clauses (c) and (d), of the Bengal Tenancy Act and that the Courts below aced contrary to law in making a decree in respect of such lands. The provisions referred to above are: "

160. The following shall be deemed to be protected interests within the meaning of the Chapter:

(c) any lease of land whereon dwelling house, manufactorise or other permanent buildings have been erected, or permanent gardens, plantations, tanks, canals, places of worship or burning or burying grounds have been made ; (d) any right of occupancy."

10. Referring to these provisions Mr. Islam has drawn my attention to certain khatians in which some of the lands involved have been recorded in occupancy rights m favour of Dar Korfadars under the Korfadars, i.e., the under‑raiyats holding immediately under the raiyati holdings auction‑purchased by the plaintiffs- petitioners. He has also drawn my attention to a few entries in the khatians recording some of the plots as homesteads and gardens. Mr. Guha however, has contended that the said entries which are no doubt there, cannot help Mr. Islam's client inasmuch as the protection afforded by section 160 of the Bengal Tenancy Act is confined to the under‑raiyati interest held immediately under the raiyats whose interest has been auction purchased and not to the subordinate interests created by such under‑raiyats. Before proceeding to deal with this controversy, I may observe that even assuming for the moment the applicability of section 160 to under‑raiyats of all degree, the claim of protection under clause (d) of the said section on the ground of occupancy rights cannot be maintained. For a complete answer thereto, I need only refer to section 48‑G, subsection (3), of the Bengal Tenancy Act, which provides :‑ "The interest of an under‑raiyat who has a right of occupancy in his holding shall not be deemed to be a protected interest under clause (d) of section 160." So the existence of occupancy rights, no matter whether those in whom such rights, have vested are the under‑raiyats concerned themselves or sub‑tenants of an Inferior degree below them, cannot, in any view of the matter, stand in the way of the plaintiff's.

11. As to protection claimed on the basis of entries in khatians recording certain plots as homesteads, homestead land or gardens, it may be similarly pointed out that although the interest of an under‑raiyat is not a protected interest under clause (d) of section 160 of the Bengal Tenancy Act, it may be so within the meaning of clause (c) thereof but the mere fact that a dwelling but or a garden once existed on a piece of land cannot make it protected. Moreover it is not any or every dwelling but or garden but only one of a permanent character that can attract the operation of the said clause. The clause contemplates works of a permanent character and protects them irrespective of whether the lease was or was not given for the purpose of the work in question but it is necessary that the work must still be in existence. It, however, appears from the record that in this instance no case was at all made at any stage nor any, evidence adduced at the trial that there were permanent dwelling huts or gardens on any portion or portions of the lands involved. No such contention appears to have been raised even before the learned appellate Court. It is, therefore, difficult to see how such a plea, which is based on a pure question of fact, to wit, existence or otherwise of permanent dwelling huts and gardens, can be raised or entertained for the first time in revision before the High Court. On this ground alone, therefore, the contention of Mr. Islam claiming protection under clause (c) of section 16 of the Bengal Tenancy Act for his clients is liable to be rejected as untenable.

12. As I have already observed above, the protection claimed by Mr. Islam under clause (c) as much as under clause (d) relates to interests held under the under‑raiyati directly subordi nate to the ralyati holdings auction‑purchased by the plaintiffs and that raises a question as to whether a Dar‑under‑raiyat can claim such protection when the interest of his immediate landlord, I.e., the under‑raiyat concerned has been annulled in due process of law. Mr. Guha has resisted the proposition to that effect put forward by Mr. Islam and contended that the protection contemplated by section 160 of the Bengal Tenancy Act avails as against the immediate landlord only and cannot be invoked by a Dar‑under‑raiyat against the superior landlord, i.e., the landlord of the under‑raiyat under whom he holds his interest. According to him, such a subordinate interest, I.e., Dar‑under raiyati, being an incumbrance not upon the raiyati but upon the under‑raiyati, lapses or ceases to subsist automatically with the annulment of the latter and no separate notice is necessary therefore nor can the existence of dwelling huts or gardens made by the Dar‑under‑raiyat be pleaded successfully in answer to the claim for khas possession laid by the auction purchaser of a raiyati holding after annulment of the sub‑tenancy created by the raiyat or raiyats concerned only. In support of this contention Mr. Guha has placed his reliance upon the cases of Monmotha Nath Mitter and others v. Anath Bandhu Pal and another (25 C W N 106) and Makham Das Kuli v. Ram Chandra Gosswami and others (17 C W N 1064). These are no doubt authorities for the proposition that "what is required to be annulled by a purchaser of a point at a rent sale under section 167, Bengal Tenancy Act, is only the sub‑tenancy created by the Putnidar and the purchaser is now called upon to find out the chain of subordinate interests which may be in existence." But there is nothing therein to lay down that a sub‑tenant of an inferior grade is not entitled to the protection of clause (c) or, for that matter, any other clause that may apply to such a sub tenant and has not been expressly excluded as has been done in the case of clause (d). As a matter of fact, it appears to. have been clearly held in the latter decision that "the extinction of the Durputni necessarily carries with it the extinction of the Seputni which is not a protected tenure under the definition in section 160 of the Bengal Tenancy Act." This view, in my opinion, is fully warranted by the language of clause (c) which being general in character and not confined to any particular kind of lease is wide enough to attract sub‑tenancies of all grades. In this view of the matter, therefore, I find it difficult to accept the contention of Mr. Guha. It is, however, not necessary for me to decide that point for the purpose of the present litigation before me for the simple reason that the persons really interested therein, i.e., the Dar‑under‑ralyats concerned, are not parties to the suit and will be free, if so advised, to agitate the same when the plaintiffs proceed to touch their interest in case they claim to have existing dwelling huts or gardens of a permanent character on any portion or portions of the lands in their respective holdings. But so far as the present defendants are concerned, they cannot be heard to take shelter behind that and defeat the plaintiffs' claim for khas possession when their under‑ralyati has been legally annulled in due process of law.

13. It has, however, been already found above that the plaintiffs cannot maintain their claim for khas possession in respect of the lands appertaining to the under‑raiyatis in question is Mouzas Chota Gangni and Shibpur and, as such, the decree complained of needs modification to that effect. The judgments and decree of the learned Courts below, are, accordingly modified to the effect that the plaintiffs' claim for khas possession in respect of the lands appertaining to Khatian No. 99 of Mouza Chota Gangni and Khatian No. 222 of Mouza Shibpur shall stand dismissed.

14. Subject to the modification as indicated above, this revision is dismissed, without any order as to costs. S. Q./K. B. A. Revision dismissed.