MOKBUL ALI SADAGAR Vs. BASARAT ALI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in a suit for ejectment on the basis of title acquired by purchase at a sale for arrears of revenue held under Act XI of 1859. The baieapti, taluk purchased by the plaintiff was made an entire estate in 1841. At that time the lands comprised in the taluk were subject to the etmam tenure set up by the defendants which, it has been found, was in existence in the year 1837, that is, before the creation of the taluk in the year 1844. In these circumstances, the question arises whether the plaintiff is entitled to eject-the defendants under Section 37 of Act XI of 1859, which provides as follows: The purchaser of an entire estate in the permanently settled districts of Bengal, Bihar and Orissa, sold under this Act for the recovery of arrears due on account of the tame, shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of Settlement and shall be entitled to avoid and annual all under-tenures and forthwith to eject all under-tenants with the following exceptions:---First, istemrari or mokurrari tenures which have been held at a, fixed rent from the time of the Permanent Settlement; secondly, tenures existing at the time of Settlement which have not been held at a fixed rent: provided always that the rents of such tenures shall be liable to enhancement under any law for the time being in force for the enhancement of the rent of such tenures." On behalf of the plaintiff appellant, the argument has been put forward that the expression After the time of settlement" means After the time of the Permanent Settlement of 1793." In our opinion, this contention is not well-founded. The section taken as a whole makes it abundantly clear that a distinction is drawn between the settlement of the estate which is brought to sale and the Permanent Settlement of 1793. The two expressions are not identical. THIS was pointed out by Mr. Justice Macpherson in the case of Raj Chunder Chowdhry V/s. Shaikh Eusheer Mahomeo, 24 W. B. 476, where he observed as follows: "We think that the Judge is wrong in the construction which he has put upon the word settlement in the first paragraph of Section 37 of Act XI of 1859. The word as there used refers not to the Permanent Settlement but to the Settlement which took place after resumption by Government of the lands previously held as lakheraj. That this is so, is evident when the whole of the section is read together; and where the Permanent Settlement is referred to, namely, in the first of the exceptions immediately following, the words Permanent Settlement are need." THIS exposition of the law was adopted in the case of Koowar Singh v. Gour Sunder Perthad Singh 24 C. 887 : 12 Ind. Dec. (n. s.) 1260, where it wag held that the terra settlement means the contract wish Government whenever that may have been made. In the case then before the Court. the original estate had been created in 1793, and had been subsequently partitioned under the Partition Act, so that the original entire estate was broken up into a number of independent estates. It was held that each of these new estates was an entire estate such as was contemplated by A at XI of 1859; and, further, that as the partition did not alter the amount of revenue payable but merely apportioned that amount, each fragment of the original estate must be deemed to have been created a permanently-settled estate in 1793, that is, when the contract with Government was first made. See also Timasha Bibi V/s. Ashutosh Dhur 4 C. W. N. 513. In the case before, us, there is no room for doubt or, dispute that the contract with Government in respect of the ba(sic)eapti taluk was first made in 1844, when revenue was assessed thereon and it was transformed into a revenue paying estate liable to be sold for its arrears. THIS view is really not opposed to the decision in Nagendra Lal Chowdhury V/s. Nazir Ali 10 C. W. N. 503. We hold accordingly that the view taken by Mr. Justice New-bould as to the construction of Section 37, of Act XI of 1859 is correct.

(2.) IF this interpretation be adopted, the plaintiff cannot possibly succeed. No doubt, the incidents of an etmami tenure, which were investigated by this Court in Jogesh Chandra Roy V/s. Makbul Ali 60 Ind. Cas. 984 : 26 C. W. N. 857 : 47, C. 979, have net been determined by the lower Appellate Court, and it has not been found whether the etmam set up by the defendants is covered by the first or the second of the exceptions to Section 37; but this is immaterial. IF it is covered by the first exception and is an istimrari or mokurrari tenure, the, as in the case of Nogendra Lal Chowdhury V/s. Nazir Ali 10 C. W. N. 503, the facts found would justify a presumption that the tenure existed at the time of the Permanent Settlement. On the other band, if the etmam is one which has not been held at fixed rent, then the finding that it was in existence at the time of the original settlement of the bajeapte taluq in 1844 is sufficient to make the second exception applicable. In either view, the interest of the defendants cannot be annulled by the plaintiff and the suit has been rightly dismissed, The appeal is dismissed with costs.