GOUR CHARAN DAS Vs. ATAL BEHARI RAY

JUDGEMENT

(1.) The deft. 2 is the applt. before us, the resps. being the pltf. & deft. l. During the pendency of these proceedings in the lower appellate Ct. the matter appears to have. been compromised between the pltf. & deft. 1 &. that is apparently the reason why the present second appeal is only by deft. 2. The appeal arises, under the following circumstances.

(2.) Defts. 1 & 2 were the proprietors of a residuary Touzi no. 2463/R of the Cuttack Colleetorate. This residuary Touzi was put up for sale for arrears of revenue & purchased by the pltf. on. 11-9-44. The suit is by the said purchaser for recovery of Khas possession from the defts of certain lands of the extent of 1.90 acres within the; Touzi which have been recorded in the current settlement khatain Ext. 3 as being in the Khas: possession of the father of defts. 1 & 2 Under Section 26 (2) Orissa Tenancy Act. The pltf'a. case is that as a result of his purchase in Ct. auction, he has obtained also the right to the Khas possession of the suit lands. Admittedly, the suit lands constituted at one time a raiyati holding. They have been purchased by the defts'. father & have been since then in the possession of the family. The contention of the pltf. is that Under Section 26 (2), O. T. Act, these, lands were held by the father of the defts. & thereafter by the defts. as mere proprietors & that therefore such interest as they had in it passed on to him on his purchase of their proprietary interest in the revenue sale. This contention has been upheld by both the Courts below & hence this second appeal.

(3.) The Bench had occasion to consider recently in Nilmoni v. Govinda Chandra, I. L. R. 1950 Cut. p. 526 the effect of such a purchase when it was made prior to the Orissa Tenancy Act of 1913 & when the Bengal Tenancy Act was in force in this Province. We held that the result of such a purchase was the creation of an intermediate status for the purchasing proprietor which was neither that of an occupancy tenant or of a tenant-at-will. It was a tenancy right nevertheless which did not merge with the proprietary right. The, question that arises for consideration in the present case is what would be the legal position when; the purchase of the occupancy holding by the co-sharer proprietor was subsequent to the passing of the Orisaa Tenancy Act of 1913. It may be mentioned that the record in the present ease did not make it clear as to whether the purchase of the occupancy holding by the father of the defts. in this case was before 1913 or thereafter. We therefore adjourned the case on a previous hearing to enable the advocates on both sides to ascertain what the fact was. We have been informed that the purchase in this case was after 1913.