INU MANUAL Vs. KUMAR BIMALENDU BOY BAHADUR

JUDGEMENT

(1.) THIS appeal arises out of a suit in ejectment. The plaintiff failed in the first Court but was successful in the lower Appellate Court, and the defendant now appeals. The plaintiff, who was a co-sharer landlord purchased a raiyati holding in execution of a mortgage, decree in 1904. In 1905 he granted the defendant an under raiyati lease for nine years. He brought this suit to eject the defendant on the expiry of the term. The contention of the defendant which was upheld by the first Court was, that the plaintiff s status could not be that of a raiyat and that consequently he, the defendant, was not an under-raiyat but a raiyat. The only question argued before us has been as to the status of the plaintiff. The case has been argued on the assumption that Section 22 of the Bengal Tenancy Act, as it stood before the amending Act I (E.B. and A.) of 1908, applies to this case. It is contended on behalf of the appellant that the effect of the amendment was not to alter the law but to make it more clear. Under Clause (2) of the amended section of the Act, a purchaser in the plaintiff s position would have no right to hold the land as a raiyat. The corresponding provision before the amendment was: "If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, it shall cease to exist." The meaning of this provision has been considered by a Special Bench in the case of Miajan v. Minnat Ali 24 C. 521 : 12 Ind. Dec. (N.S.) 1015 and by a Full Bench in Ram Mohan Pal v. Sheikh Kachu 32 C. 386 : 9 C.W.N. 249 : 1 C.L.J. 1. In both these cases it has been held that, "by the transfer of the occupancy right to a person jointly interested in the land as proprietor or permanent tenure-holder, the holding does not cease to exist, bat only the occupancy right is terminated." It seems to us that, on the authority of these rulings, the plaintiff by his purchase in the present case obtained the raiyati right of the judgment-debtor. We may refer to the remarks of Ghose, J., at page 393 of the Full Bench decision where he says, "the co sharer landlord having acquired the rights of a raiyat could hold the land as a raiyat, if not to himself certainly to the other co- sharer landlord. "It is argued for the appellant that, though by his purchase, the co-sharer landlord got a right to occupy the land he only had the right to occupy as a tenant and not as a raiyat. Bat these remarks are clearly against this contention. It is farther argued that as it has been held that a co-sharer landlord purchasing the raiyati right can never become an occupancy raiyat, therefore, he cannot be a raiyat since every raiyat has a right to become an occupancy raiyat, and in support of this contention reference is made to the decision in Ram Lal Sukul v. Bhela Gazi 6 Ind. Cas. 370 : 37 C. 709 : 14 C.W.N. 814. But an examination of that case shows that it is further authority against the appellant s main contention. In that case the jote of a tenant with rights of occupancy was purchased at an execution-sale by some co-sharer landlords called Dichits and it was held that these Dichits, by reason of their subsequently continuous holding of the land as raiyats for a period of twelve years and more from the date of their purchase, had not acquired an occupancy right. The plaintiff in that suit purchased the right of the Dichits and it was held the plaintiff had purchased a raiyati holding without occupancy right. THIS further supports our view that the right purchased by the plaintiff at the sale was a non-occupancy raiyati right. Taking this view, we must uphold the decision of the lower Appellate Court and dismiss this appeal with costs. Buckland, J.

(2.) I agree.