BHAGWARI PRASAD Vs. SAHADEO UPADHAYA

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the appellants for the ejectment of the defendants from 2.32 acres of land in village Khairhi in respect of which the defendants are recorded as shikmidars under one Ram Pragash Lal whose interest has been purchased by the appellants. The suit was decreed by the Munsif but has been dismissed on appeal by the Additional Subordinate Judge on a ground which was raised by the defendants for the first time in the lower appellate Court, namely, that under Section 48A, Bihar Tenancy Act, they must be deemed to have acquired an occupancy right in the land in suit and cannot therefore be ejected. This section admittedly came into force after the case had been decided by the trial Court, but the lower appellate Court has held that it is retrospective and must govern all pending litigations.

(2.) The appellants contend that this view is not borne out by the language of the section and that in any case this new provision cannot be retrospective in operation owing to Section 292, of the new Government of India Act. Section 48A, Bihar Tenancy Act, runs as follows: Every person who for a period of 12 years, whether wholly or partly, before or after the commencement of the Bihar Tenancy Amendment Act, 1938, has continuously held land as an under-raiyat in any village, whether under a lease or otherwise shall be deemed to have acquired on the expiration of that period a right of occupancy in the land which he has so held for the said period.

(3.) It is not denied by the appellants that the defendants have held the disputed lands for over 12 years as under-raiyats in village Khairhi, but it is urged on their behalf that Section 48A must be construed according to the well-established rule that new Act will not affect existing rights, unless it is expressly made retrospective.