The main legal point established in the judgment is the interpretation and application of sec. 12 and sec. 14 of Act VII of 1868 in determining the validity of the Plaintiff's title and the protection of the Defendants' interests.

JUDGMENT

Chakravartti, J. - These three appeals arise out of a single suit brought by one Nagendra Nath Choudhury for the ejectment of a number of persons from six Revenue Survey plots, comprising a portion of a tank and portions of three of its banks. The Plaintiff's case was that the plots appertained to a tenure, called Noabad Ijara No. 13. Kanta Prosad Hazra, which he had purchased at a revenue sale, but the Defendants were in possession of the plots without any right or title and had failed to vacate them although asked to do so. The Defendants, who came ultimately to be thirteen in number, included all persons claiming an interest in the lands. They fall into two classes, tenants and sub-tenants. Defendant No. 1 claimed no present interest, but alleged that he had previously a raiyati interest in all the lands which he had transferred to his wife, Defendant No. 11, before the institution of the suit. Defendant No. 11, who asserted this raiyati interest by her written statement, died during the pendency of the suit and thereupon her son, Defendant No. 11 (ka), was substituted in her place. Of the rest of the Defendants, some claimed to be subtenants under the raiyati as regards various portions of the lands and some again were said to be sub-tenants or licensees under one of such subtenants. Besides Defendant No. 1 and Defendant No. 11 (ka), we are concerned in these appeals with only Defendant No. 2(ka), who claimed a sub-tenancy under Defendant No. 1 and his successors-in-interest in some of the plots under two leases. Of those leases, one was taken By Defendant No. 2(ka), himself after the revenue sale and need not be considered. The other was taken by Defendant No. 2 who died during the pendency of the suit and on whose death Defendants 2(ka) and 2(kha) were substituted in his place as his son and widow respectively.

2. The common defence of the Defendants was that the disputed plots did not at all appertain to the tenure purchased by the Plaintiff and, secondly, that assuming they did, the interests of the Defendants were protected under sec. 12 of the Second Revenue Sales Act (VII of 1868).

3. There was a local investigation in the case at which it was found that the lands in question appertained to Maghi Survey plots Nos. 3326, 3327, 3328 and 3329. It was also found that so far as C.S. plots were concerned, a portion fell within C.S. plot No. 355.

4. The trial Court rejected all the defences and decreed the Plaintiff's suit in full except as against certain Defendants who were found to have no interest in the lands. On appeal by Defendants Nos. 1, 2(ka) and 11(ka) the learned Subordinate Judge modified the trial Court's decree and held that so far as the lands appertained to Maghi Survey plots 3326 and 3328, the Government had no right to include them in Noabad Ijara No. 13 and the Plaintiff had acquired no title to them by his purchase of the Ijara. He held further that while the interest of Defendants Nos. 1 and 11(ka), was not protected, the interests of Defendants Nos. 2(ka) and 12 were, as respects those portions of the lands of their tenancies on which they had permanent dwelling houses. In the result, the learned Judge dismissed the suit with respect to that portion of the lands which fell under Maghi Survey plots 3326 and 3328 and decreed it with respect to the portion falling under Maghi Survey plots 3327 and 3329, subject to the rights of Defendants Nos. 2(ka) and 12 as declared by him, and he directed the exact sites of the structures to be determined in the course of execution.

5. It is to be observed that although Defendant No. 12 had not appealed, the learned Judge modified the decree in her favour as well, presumably under Or. 41, r. 4 or r. 33 of the Civil Procedure Code.

6. Against the decision of the learned Judge, the Plaintiff has preferred S.A. No. 486 of 1942. His contention is that the learned Judge was wrong in holding that Maghi Survey plots 3326 and 3328 could not legally be included in the Ijar