1. M. R. KHAN, J.--This appeal, by special leave, arises out of Title Suit No, 263 of 1958 of the First Court of Munsif, Sylhet and is directed against the judgment and decree of a learned Single Judge cf the High Court of East Pakistan in second appeal affirming those of the trial Court and the first appellate Court.
2. The plaintiffs of the said title suit are the respondents 1 to 5 herein. They brought the suit against six persons of whom the defendants 1 to 5 were the principal defendants and Mumtazuddin Khan was the pro forma defendant No,
6. Of the five principal defendants, the defendants 1 to 3 and Sajidur Rahman, the successor-in-interest of the fourth defendant Anjumunnessa are the appellants in this appeal. The suit was one for declaration of the plaintiffs' tenancy right to the land in suit situated within the Sylhet Municipality and for recovery of khas possession thereof and also for compensation and mesne profits.
3. The case as made out in the plaint was as follows :- The suit land originially belonged to the Majumdar Waqf estate. The plaintiffs' predecessor-in- interest Sonawar Ali Chowdhury, a practising Mukhtear took lease of the suit land from the then Mutwalli of the Waqf estate for a period of 3 years by a registered deed of lease, dated the 25th Aswin, 1321 B. S. (12-10-1914). After taking the lease, Sonawar Ali Chowdhury constructed a dwelling but on the suit land and started living there and went on practising as a Mukhtear. During the subsistence of this tenancy, Abdul Latif Khan, the predecessor-in-interest of the principal defendants along with the pro forma defendant No, 6 Mumtazuddin Khan took settlement of some lands including the, suit land in tenure right from the Mutwalli of the said Waqf estate. These two persons as tenure-holders became entitled to get rent for the suit land from Sonawar Ali Chowdhury and they regularly realised rent from him amicably. About 7 years before the institution of the suit on 29-8-1958, Sonawar Ali Chowdhury, on account of his old age, retired from legal profession and went back to his village home after placing the suit land and the dwelling but in possession of Habibur Rahman, a pleader's clerk. The plaintiffs 1 and 2 who are the sons of Sonawar Ali Chowdhury used to live in the dwelling but on the suit land whenever they visited the Sylhet town. While the plaintiffs were thus in possession of the suit land, the principal defendants trespassed into that land on 29-1-1956, demolished the dwelling but thereon and took away the movables belonging to Sonawar Ali Chowdhury. Accordingly, the plaintiffs, after the death of Sonawar Ali Chowdhury, brought the suit on 29-8-1958 for the reliefs aforesaid.
4. Of the principal defendants, the defendant No, 1 alone contested the suit. He adm tted the lease taken by Sonawar Ali Chowdhury from the Majumdar Waqf estate in respect of the suit land. He further admitted that Sonawar Ali Chowdhury constructed a dwelling but on the suit land and used to live therein while practising as a Mukthear. His contention, however, was that the lease taken by Sonawar Ali Chowdhury having come to an end by efflux time, he continued to possess the suit land and the dwelling but on it as a licensee of Abdul Latif Khan (predecessor of the principal defendants) end Mumtazuddin Khan (pro forma defendant No, 6) who had earlier taken from the Waqf estate lease of the suit land and other lands adjoining thereto. His further contention was that the Mutwalli of the Waqf estate put the suit land and other lands to sale in execution of a decree for rent and the same were auction-purchased by him in Rent Execution Case No, 27 of 1958 and that he took possession of the suit land after demolishing the dwelling but as of right.
5. According to his defence, the other defendants were unnecessary parties to the suit as they had no interest in the suit land.
6. The trial Court held that Sonawar Ali Chowdhury who had taken lease of the suit land, in spite of the expiry of the period of his lease, continued to possess the suit land and live in his dwelling but thereon till his retirement from legal profession in 1950; that he was not a licensee under the predecessor of the principal defendants and the pro forma defendant No, 6 as alleged; that the plaintiffs as heirs of Sonawar Ali Chowdhury have tenancy right to the suit land and that the principal defendants trespassed into that land, demolished the dwelling but and removed some movables as alleged in the plaint. Accordingly, the trial Court decreed the suit on contest against the defendant No, 1 and ex parte against the rest and awarded compensation of Rs, 250.
7. The defendants 1 to 4 jointly preferred an appeal against the decree of the trial Court. It is pertinent to note that the contesting defendant No, 1 alleged in his written statement that the other defendants had no interest in the suit land and were, therefore, unnecessary parties. Even then, he allowed the defendants 2 to 4 to join him in the first appeal against the trial Court's decree. Be that as it may, the first appellate Court agreed with the findings of the trial Court and affirmed its judgment and decree. The same defendants, namely, the defendants 1 to 4 preferred a second appeal, but it was dismissed by a learned Single Judge of the High Court on the ground that the factum of continued actual possession of the suit land by Sonawar Ali Chowdhury and the further fact that his name continued in the assessment roll of the Municipality in respect of the disputed premises gave rise to a presumption of holding over of the tenancy by him after the expiry of the period of the original lease.
8. Mr. D. C. Bhattacherjee, learned counsel for the appellants has rightly conceded that if Sonawar Ali Chowdhury and, after him, his heirs had tenancy right to the suit land by holding over, then, the answering defendant No, 1, by his auction-purchase in Rent Execution Case No, 27 of 1958, acquired only the right to get rent from them, but did not become entitled to get possession of the suit land.
9. The learned counsel, however, calls in question the correctness of the view taken in the second appeal with regard to holding over by Sonawar All Chowdhury. The land in suit being a non- agricultural land lying within the limits of the Sylhet Municipality is governed by the Transfer of Property Act. Section 116 of that Act which states the effect of holding over, runs thus : "116. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106."
10. It was the case of the plaintiffs that subsequent to the lease of Sonawar Ali Chowdhury, Abdul Latif Khan, the predecessor of the principal defendants and Mantazuddin Khan, the pro forma defendant No, 6 took a lease from the same waqf estate in respect of the suit land and other lands adjoining thereto. It was also their case that these persons having taken lease in tenure right, Sonawar Ali paid rent to them for the suit land amicably, but did not ask for any rent receipt as he was in friendly terms with Abdul Latif Khan. The trial Court put reliance on the oral evidence with regard to such payment of rent but the first appellate Court, though it did not reject the oral evidence, gave no importance to the payment of rent. However, both the trial Court and the first appellate Court were unanimous that Sonawar Ali Chowdhury took lease of the suit land as per registered deed of lease, dated the 12th October 1914 and that he himself was in occupation of his dwelling but thereon till he gave up legal profession in the year 1950. Thereafter the dwelling but was in his possession through his men. The original lease of Sonawar Ali Chowdhury which was one for a period of 3 years expired as early as 12th October 1917. Even after the expiry of the lease, Sonawar Ali Chowdhury himself continued to possess the suit land and his dwelling but till 1950.
11. This means that he possessed the land and the but for more than 33 years without any break. The Courts of fact have found that the suit land and the dwelling but thereon were in the plaintiffs' possession till their dispossession on 29-1-1956. During this long period, neither the Waqf estate, nor the defendants' predecessor and the pro forma defendant No, 6 who had taken a lease from the Waqf estate, cared to take any steps for ejectment of Sonawar All Chowdhury or his heirs. The defence plea that Sonawar Ali Chowdhury was a licensee under the said lessees of the Waqf estate was totally negatived by both the trial Court and the first appellate Court for which they gave very convincing reasons. On the contrary, the De nand Registers of the Municipality Exh. 3 series show that the holding comprising the suit land stood in the name of Sonawar Ali Chowdhury at least up to 1951-52. The very fact that Sonawar Ali Chowdhury was allowed to remain in undisturbed possession for a long period and the further fact that the holding comprising the suit land was allowed to stand in the municipal register in his name without any protest from the Waqf estate or the subsequent lessees from that estate clearly indicate that they acquiesced in the holding over of the suit land by Sonawar Ali Chowdhury and, after him, by his heirs. The view taken by the learned Single Judge of the High Court that Sonawar Ali Chowdhury remained in possession of the suit as a tenant holding over cannot, therefore, be assailed as erroneous. Even otherwise, the plaintiffs should be taken to have acquired limited tenancy right by actual possession of the suit land for over 33 years. If the holding over of the suit land by Sonawar All Chowdhury be not accepted as correct, then, his possession, after the expiry of his lease on the 12th October 1917, became the possession of a trespasser, and he must be taken to have actually possessed the suit land as a trespasser for more than 33 years, to the knowledge of the Mutwalli of the Waqf estate and that of the subsequent lessees including Abdul Latif Khan whose interest was claimed to have been auction-purchased by the answering defendant No,
1. By such open and actual possession in assertion of tenancy right, Sonawar Ali Choudhury should be taken to have acquired limited tenancy right.
12. Mr. D. C. Bhattacherjee maintains that the defendants other than the defendant No, 1 have no interest in the suit land. The defendant No, 1, according to him, auction-purchased the suit land and other lands on 24-9-1958 (this was after the institution of the suit on 29.8-58) in Rent Execution Case No, 27 of 1958. It appears from the sale certificate Exh. E that the said rent execution case was started by the Majumdar Waqf estate against the heirs of Abdul Latif Khan. Therefore, the defendant No 1, by his auction-purchased, acquired, at the most, the right, title and interest of the heirs of Abdul Latif Khan which they might have in the suit land, but the tenancy right of S sonawar Ali Choudhury as devolved upon his heirs i,e, the plaintiffs remained unaffected by the said auction-purchase.
13. Thus, there is no merit in this appeal. We accordingly dismiss the appeal, but, having regard to the nature of the controversy involved in the case, leave the parties to bear their own costs.