SUNDER MALL Vs. LACHHMI TEWARI

JUDGEMENT

(1.) This appeal arises out of a suit to recover possession of plot 196 measuring 7 bighas, 2 khatas in khata No. 60 of tauzi No. 24363. This plot was originally recorded as kasht of Bhikari at a rental of Rs. 6 per annum and appertained to tauzi No. 9441. In 1897 Narsingh Tewari, ancestor of the defendants, purchased it from Bhikari and took possession. At the time Narsingh was a co-sharer landlord of the tauzi. Subsequently, there was a partition of the tauzi and plot 196 was allotted to the new tauzi No. 24363 which was the patti of another co-sharer malik Sarjug Singh. At the partition it was treated as bakasht and valued at Rs. 5 per bigha per annum. The co-sharers were put into pos-session of their new pattis under Section 94, Bengal Estates Partition Act, on 14 May 1923. The plaintiffs purchased Sarjug's patti in June 1924. They alleged that they obtained delivery of possession, but were dispossessed by the defendants a month later.

(2.) It has been found however that they never obtained actual possession of the plot in dispute. The present suit was instituted on 7 March 1935. The plaintiffs claim was resisted by the defendants on the ground that they are entitled to hold possession of it by reason of the provisions of Section 22(2), Bihar Tenancy Act. Although the land was treated as bakasht in the partition and valued at Rs. 35 per annum instead of at Rs. 6 per annum which was the rent payable by Bhikhari, the plaintiffs contended that Section 119, Estates Partition Act, barred the defendants from contending that the land was their tenancy land as this would amount to contesting the partition. In the Courts below and before the Judge of this Court before whom this case was first argued, the matter was dealt with as if the present Section 22(2) applied. It is clear however that the amendments made in Section 22(2) by the Amending Act of 1907 do not apply to a purchase made before that date and therefore do not apply in the present appeal to plot 196 which was purchased by Narsingh in 1.897. Before its amendment in 1907, Section 22, Tenancy Act, stood as follows: (1) When the immediate landlord of an occupancy holding is a proprietor or permanent tenure-holder, and the entire interests of the landlord and the raiyat in the holding become united in the same person by transfer, succession or otherwise, the occupancy rights shall cease to exist; but nothing in this sub-section shall prejudically affect the rights of any third person. (2) 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; but nothing in this sub-section shall prejudicially affect the rights of any third person.

(3.) In 1907 the Section was amended and now stands as follows: (1) When the immediate landlord of an occupancy holding is a proprietor or permanent tenure-holder and the entire interests of the landlord and the raiyat in the holding become united in the same person by transfer, succession, or otherwise, such person shall have no right to hold the land as a tenant, but shall hold it as a proprietor or permanent tenure- holder (as the case may be); but nothing in this sub-section shall prejudicially affect the rights of any third person. (2) If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, he shall be entitled to hold the land subject to the payment to his co-proprietors or joint permanent tenure-holders of the shares of the rent which may from time to time be payable to them; and, if such transferee sub-lets the land to a third person, such third person shall be deemed to be a tenure-holder or a raiyat, as the case may be, in respect of the land.