JANAKI NATH NANDI Vs. AMARENDRA NATH BISWAS

JUDGEMENT

(1.) The plaintiff is the purchaser of the property in dispute at a sale under Regn. 8 of 1819. He alleges that after the said sale, there was an extinguishment of all encumbrances and that the defendants who are in possession of the lands described in the plaint herein have no right to possess the same and are trespassers. It is further alleged that the defendants fraudulently had an entry made in the Record of Rights to the effect that they were holding the lands as occupancy raiyats at a jama of Rs, 4 a year. In the circumstances the plaintiff is asking for khas possession of the said lands together with mesne profits. The defendants contention is that they have occupancy rights in the holding, that the holding has been in existence from before the date of the permanent settlement, that they are khudkast resident and hereditary raiyats of the holding, that the holding was not an encumbrance and that it was not and could not be annulled by reason of the sale under Regn. 8 of 1819, and that therefore the plaintiff was not entitled to khas possession as prayed for by him. The first Court found that the patni tenure was created before the date of the origin of the tenancy in this case, and that the defendants were not resident or hereditary khudkast raiyats but they were paikast raiyats and that though they had acquired occupancy rights, they were not khudkast raiyats within the meaning of Section 11, Regn. 8 of 1819 and that therefore the plaintiff was entitled to get khas possession of the lands in dispute.

(2.) The lower appellate Court was however of opinion that a raiyat with an occupancy right occupied the same position as a khudkast raiyat and that he had the same protection as khudkast raiyat had when the Putni Regulation of 1819 was enacted, and that the plaintiff being a purchaser at a sale under the said Patni Regulation was not entitled to evict the defendants. The lower appellate Court accordingly held that the plaintiff's suit should be dismissed. On appeal to this Court the learned Judge before whom the appeal came on for hearing was of opinion.,, that the defendants having acquired the status of occupancy raiyats were not liable to eviction. It is against this judgment that the present appeal has been preferred.

(3.) The question depends upon the ascertainment of the rights which the defendants have in respect of the lands in suit and upon the proper construction of Section 11, Regn. 8 of 1819. The lower appellate Court has adopted the finding of the first Court that the defendants are not khudkast raiyats but that they are occupancy raiyats, and we must therefore proceed on this footing. It is therefore not necessary, strictly speaking, to go at length into the question of the rights of khudkast raiyats; but reference may be made to para. 406 of Sir John Shore's Minute of 18 June 1789 relating to the question of the permanent settlement of lands in Bengal where the rights of khudkast raiyats are discussed and also to the judgment of Trevor, J,, in the great rent case of Thakurani Dassi V/s. Visweswar Mukherjee 3 WR Act, 10 p 29, where an elaborate account is given. It may be noticed however that it is by no means correct to say that khudkast raiyats had no rights of occupancy; but be that as it may, the defendants have certainly rights of occupancy in the lands comprised in their holding and the question now is whether they can be evicted at the instance of the plaintiff. The plaintiff relies on C1. 3, Section 11, Regn. 8 of 1819 and argues that none but khudkast raiyats are protected from eviction in the event of a sale of the patni tenure under Regn. 8 of 1819. This contention was negatived by B.B. Ghose and Roy, JJ., in a case which was decided by this Court in 1927: Rash Behary Mandal V/s. Hemanta Kumar Ghose The learned Judges observed as follows: There is ample authority for the proposition that the proviso in Clause 3 does not mean that persons in occupation not coming within the definition of khudkast raiyats are liable to be ejected oven if they have acquired occupancy rights under the Tenancy Law. I have not been able to find any authority with regard to the patni sales, but the cases with reference to Section 16, Act 8, of 1865, where the proviso is in the same terms as the proviso in C1. 3, Section 11, Regn. 8 of 1819 support the proposition. Those cases are Pureeag Singh V/s. Pratap Narain Singh (1869) 11 WR 253; Nil Madhab V/s. Shiboo Pal (1870) 13 WR 410; Eman Ali V/s. Atur Ali (1874) 22 WR 133 and Bama Charan V/s. Bam, Kanai (1915) 28 IC 374.