ISWAR JAGANNATH DE JIU Vs. ASIT KUMAR ROY

JUDGEMENT

(1.) THE opposite parties Nos. 1 to 3 are persons who are Bharatias of the second degree. The thika tenant had a Bharatia and that Bharatia leased out to oppostie parties Nos. 1 to 3 and the opposite parties Nos. 1 to 3 are therefore, bharatias of the second degree.

(2.) THE first question is whether they are the Bharatias within the meaning of the Act and the second question would be whether they are protected under section 10 (2) of the act. The definition of the word 'bharatia' in section 2 (1) is: any person by whom rent is payable for any structure or part of structure erected by thika tenant in his holding. Therefore, a Bharatia of the second degree who is in possession of any structure erected by the thika tenant is a Bharatia, no matter whether he is a Bharatia of the first degree or a Bharatia of the second degree. If the legislature intended that Bharatia would merely include Bharatia of the first degree, they would say that the rent would be payable to the thika tenant. But the legislature has not said to whom such rent is payable. Therefore, it may be payable to the thika tenant or to any other Bharatia. Hence a Bharatia of the second degree is also a Bharatia within the meaning of section 2 (1) of the Act.

(3.) THERE is no dispute that this bharatia of the second degree is in actual possession. The question is does section 10 (2) refer to a Bharatia who is in actual possession or includes one in constructive possession. If that was the intention of the legislture, the phrase 'in possession' was unnecessary and the pharse ' any Bharatia ' would have been sufficient. The phrase 'in possession' has been used to refer to those Bharatias who are in actual possession. I, therefore, interpret the words 'in possession' to mean 'in actual possession'. Hence opposite parties nos. 1 to 3 are Bharatias and are also in actual possession. Therefore, they are entitled to protection under the act. Therefore, the landlord is entitled to rent from them under section 10 (2) but the landlord would be entitled to rent from the date of vesting. As the Bharatias are in possession lawfully, the property will vest in the landlord only when a symbolical possession is delivered to the landlord. Hence the property would vest in the landlord from the date of delivery of symbolical possession to the landlord and from that date the Bharatias, the opposite parties Nos. 1 to 3 would become liable for rent to the petitioner. The Court will now issue a writ of possession and direct symbolical possession to be delivered so that the property may vest in the landlord in terms of section 10 (1) of the Act. The Rule is disposed of as above. There will be no order for costs.