PURNA CHANDRA ROY Vs. MATHURA MOHAN SAHA

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of possession of four plots of land upon establishment of title thereto. The plaintiffs and the contesting defendants, along with many others, were proprietors of Mouza Kalipura. The disputed lands constituted the occupancy holding of a cultivator named Dhanu in that Mouza. On the 15 December 1901 Dhanu mortgaged the holding to the plaintiffs who belong to a family of Roys. The contesting defendants, who belong to a family of Sahas, subsequently acquired the right, title and interest of Dhanu at an execution sale. On the 13 December 1909 the Roys instituted a suit to enforce their security and included the Sahas in the category of defendants as purchasers of the equity of redemption. On the 12 August 1910 the mortgage suit was dismissed by the Court of first instance. On the 26 April 1911 the Subordinate Judge on appeal decreed the suit. The decree was executed in due course, and at the sale which followed, the Roys themselves became the purchasers on the 5th, August 1912. The sale was confirmed on the 18 September 1912 and symbolical possession was delivered to the purchasers on the 16th February 1913. They were unable, however, to obtain actual possession and commenced this litigation on the 25 September 1913 to eject the Sahas.

(2.) It now appears that, before the institution of the mortgage suit, a suit had been instituted on the n December, 1907 by some of the joint proprietors for partition of their joint properties, including the Mouza Kalipura which comprised the occupancy holding of Dhanu. The final decree in the partition suit was made on the 7 August 1913. Under that decree, the first three plots were allotted to the Saha defendants. Consequently, in answer to the claim set up by the Roys in the present litigation, the Sahas were able to rely upon the decree in the partition suit in their written statement filed on the 2 January, 1914. The Roys thereupon contended that they were entitled to be placed in possession of the disputed lands as tenants under the Sahas. The Trial Court dismissed the suit and this decree was affirmed by the Subordinate Judge on appeal. On second appeal to this Court Fletcher and Huda, JJ., remanded the case for re-consideration. After remand, the Subordinate Judge has dismissed the suit in respect of the first three plots which have been assigned to the Saha defendants by the partition decree, while he has decreed the suit in respect of the fourth plot which is not claimed by the Sahas. On tie present appeal, the plaintiffs have urged that they should have been awarded possession of the first three plots as tenants under the Sahas. We are of opinion that this contention cannot be sustained.

(3.) The disputed lands ate situated in the District of Tipperah and are consequently subject to the operation of Section 22 of the Bengal Tenancy Act, as amended by the Eastern Bengal and Assam Council Act I of 1908. Sub-section (2) of the section as amended is in these terms: If the occupancy right ii land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, such person shall have no right to hold the land as a raiyat, but shall held it as a proprietor or permanent tenure holder, as the case may be, and shall pay to his co-sharers a fair and equitable sum for the use and occupation of the same.