SONATAN DAFADAR Vs. DAULAT GAZI

JUDGEMENT

(1.) This is a Letters Patent appeal from the decision of my learned brother Jack, J., sitting in second appeal. He has given a certificate that the case is a fit one for an appeal under the Letters Patent. The case is an interesting and important one. The form in which the learned Judge has dealt with the matter is quite shortly this: Whether in the case of an under-raiyat who by custom has acquired a right of occupancy the interest is a protected interest by virtue of Clause (d), Section 160, Ben. Ten. Act, as it stood before the amendment of 1928. The suit was brought in the Court of the Munsif and it was a suit to recover khas possession of certain land. The footing of the suit was that the plaintiffs had taken title from the superior landlord of a certain raiyati, that the appellant, defendant 12 in the suit claimed an under-raiyati interest but that, as the superior landlord had bought the raiyati at a judicial sale for arrears of rent and had resettled the land with the plaintiffs, the plaintiffs were entitled to recover khas possession. The defence was that under the raiyati which had been sold, defendant 12 held an under-raiyati interest and that he had acquired a right of occupancy by custom. Accordingly he contended that he had by virtue of Clause (d), Section 160, an interest which stood notwithstanding the sale in execution and that the sale in execution only passed the the land subject to the right of occupancy vested in defendant 12.

(2.) When the matter came before the Munsif he first of all discussed the question whether the plaintiffs had their alleged interest in the land and he found that issue for the plaintiffs. The next question he discussed was whether or not the plaintiffs could get khas possession against defendant 12 and finding that defendant 12 was recorded in the khatian as an under-raiyat with a right of occupancy, the Munsif addressed himself only to the dispute whether the land referred to in the khatian was really the suit land. Having come to the conclusion that defendant 12 was in possession of the suit land and that the suit land and the land described in the khatian were the same, ha found that defendant 12 had established his case. He said: The khatiau has recorded that defendant 12: has right of occupancy in the land by local custom. There is no evidence to rebut it. The interest is a protected interest and would save defendant 12 from eviction even by a purchaser at a bakipara sale.

(3.) The matter was taken on appeal to the lower appellate Court by the plaintiffs. We have not been shown the grounds in the notice of appeal: but it appears that the lower appellate Court decided the matter upon a footing which is untenable and need not be referred to. The matter then came before the learned Judge of this Court and the grounds of appeal before him were that the Court of appeal erred in law in holding that the plaintiffs were entitled to get khas possession and so forth. That was the appeal of defendant 12 just as the present appeal is an appeal by defendant 12. Now the learned Judge was not put in possession of any decision under the Bengal Tenancy Act prior to the amendment of 1928. He could not find that it ever had been decided one way or another whether an under-raiyati with a right of occupancy came within Clause (d), Section 160, Ben. Ten. Act. He then dealt with a contention that the amendment introduced in 1928 showed that under the unamended Act the right of occupancy of an under-raiyat was within Clause (d), Section 160. I am clearly of opinion that that is a precarious mode of reasoning and I have no doubt that he was quite right in being dissatisfied with the reasoning by which the old state of the law was said to be arrived at by considering the amendment.