ABBAS KHAN Vs. SKMOHAMMAD HUSSAIN

JUDGEMENT

(1.) The facts established by the judgments of the Courts below are that Sheikh Mohammad Hussain plaintiff is the occupancy raiyat of certain holding within which Ramsewak has held as an under-raiyat about 9 kathas 12 dhoors continuously for about 24 years. The plaintiff alleged that this occupation was but recent. This was negatived. The plaintiff alleged misuse of the land unfitting it for the purposes of tenancy and this also was negatived.

(2.) The plaintiff alleged and it has been found that Ramsewak on 7 February 1939 sold the disputed land to Abbas and Bibi Aktari defendants first party whom the plaintiff sued to eject. The sale was after the passing of the amendment made in 1988 to the Bihar Tenancy Act. The Munsif dismissed the suit observing that under Section 26A, Bihar Tenancy Act, defendants second party having acquired a right of occupancy could transfer the holding to defendant 1 and plaintiff had failed to prove any of the conditions under Section 25, Bihar Tenancy Act, under which an occupancy raiyat could be ejected.

(3.) On appeal the Additional District Judge reversed this decision being of opinion that Section 26A did not confer any right of transfer on an under-raiyat even when read with Section 48B. The land was not therefore transferable without the consent of the immediate landlord namely the raiyat who thus became entitled to re-enter as against the purchaser.