BIPIN BEHARY NANDAN Vs. JADU NATH CHATTERJI

JUDGEMENT

(1.) THIS appeal arises out of a suit by the plaintiff, as purchaser of an occupancy holding at a sale held by the landlord for arrears of rent due in respect thereof, to recover khas-possession of the holding. The defendants set up a durjote interest in the holding. The Court below has found as a .fact that the defendants are purchasers of a portion of the holding under a private sale and not under raiyati. The Court below has dismissed the suit being of opinion that the interest of the defendants in the holding amounts to an encumbrance thereon, and that the plaintiff is not entitled to khas-possession of the land unless he annuls the encumbrance under Section 167 of the Bengal Tenancy Act. THIS is opposed to the ruling in the case of Tomiz-ud- din Khan V/s. Khoda Newaz Khan 11 C.L.J. 16 : 14 C.W.N. 229 : 5 Ind. Cas. 116, in which it has been held that where an absolute transfer of the interest of a raiyati in a portion of the holding takes place, such transfer is not, within the definition of the word "encumbrance", in Section 161 of the Bengal Tenancy Act, a limitation of the tenant's interest but a complete extinction of his interest in the portion transferred.

(2.) FOR these reasons, the appeal is decreed, the judgment of the Court below set aside and the decree of the first Court restored. The appellant is entitled to his costs throughout.