SOMIR JAMA Vs. MAHABHARAT BAKTA

JUDGEMENT

(1.) This is an appeal on behalf of the first two defendants in a suit commenced by the plaintiff-respondent for recovery of possession of land included in an osat nimhowla. The plaintiff claims to be the purchaser of a nimhowla at a sale in execution of a decree for arrears of rent obtained by the howladar against the nimhowladar and asserts that he has, by service of notices upon the first two defendants under Section 167 of the Bengal Tenancy Act, annulled the incumbrances held by them. He consequently asks for ejectment of the defendants from the disputed lands. The Courts below have concurrently made a decree in favour of the plaintiff The decision of the Subordinate Judge has been assailed before us on three grounds, namely, first, that the plaintiff is purchaser of only a fourth share in the nimhowla tenure and is, consequently, not entitled to the benefit of the provisions of Section 159 of the Bengal Tenancy Act ; secondly, that the first two defendants are the holders of only one-half of the osat nimhowla and are consequently not liable to be ejected at the instance of the plaintiff; and, thirdly, that the onus was upon the plaintiff to show that the interest of the first two defendants is an incumbrance within the meaning of Section 161 and is not a protected interest within the meaning of section l60 of the Bengal Tenancy Act. In our opinion, there is no foundation for any of these contentions.

(2.) In so far as the first ground urgad on behalf of the appellant is concerned, it is clear that although the plaintiff may, in one sense, be said to have purchased only an one-fourth share of the ninhomla, yet he has purchased, upon the facts found, an entire tenure which entitles him to claim the benefit of the provisions of Section 159 of the Bengal Tenancy Act. That section provides that where a tenure or holding is sold in execution of a decree for arrears of rent due in respect thereof, the purchaser shall take subject to the interests defined in Chapter VIII as protected interests but with power to annul the interests defined in that Chapter as incumbrances. To entitle the plaintiff to avail himself of the provisions of this section, he has to establish that he is a purchaser of a tenure sold in execution of a decree for arrears of rent duo in respect thereof; in other words, that what he has purchased constitutes an entire holding. Now the Courts below have found that the nimhowla, mentioned in the plaint, is an one-fourth share of the entire nimhowla but that this one-fourth share has been separated from the remaining three-fourth share, that the land comprised in it and the rent payable for it have been completely separated, and that consequently this one-fourth share now constitutes by itself an entire tenancy. Tinder these circumstances, the principle obviously applies that a share in a tenure, which has been duly and effectively recognised by both the landlords and tenants as a separated share, constitutes a distinct tenure, and when such a tenure is sold in execution of a decree for arrears of rent due in respect thereof, the purchaser acquires the rights of a purchaser of an ontire tenancy within the meaning of Section 159 of the Bengal Tenancy Act. In support of this proposition, reference may be made to the decision of this Court in the case of Gopi Nath Biswas V/s. Radha Shyam Paddar 5 C.W.N. IXXX. The first ground, therefore, cannot be successfully maintained.

(3.) In so far as the second ground urged on behalf of the appellant is concerned, it clearly raises a question not urged before the learned Subordinate Judge, though it had been raised in the Court of first instance and decided against the first two defendants it was pointed out by the original Court that the lease, granted to the defendants on the 15 February 1896, shows that the lands in their occupation, which comprised one-half of the lands of the osat ninhowla were treated as constituting an entire under-tenure. In fact the lands included in the lease were assessed separately, and although they constituted one-half share of the original osat nimhowla acquired by the landlords, the new tenure was an entire tenancy by itself. This position was not controverted before the Subordinate Judge and, in our opinion, it cannot be successfully challenged. The second ground, therefore, fails.