SARAT CHANDRA ROY CHOWDHRY Vs. ASIMAN BIBI

JUDGEMENT

(1.) The plaintiff is the purchaser of an entire estate sold for arrears of land revenue under Act XI of 1859. He seeks to eject the defendants, who are actual cultivators, on the ground that their interests have been avoided by the sale. They on the other hand plead that, notwithstanding the sale, their interests are protected by the proviso to Section 37 of the Act of 1859.

(2.) The Lower Courts have found that the holdings of the defendants consist of lands held by them partly for more than twelve years and partly for less than twelve years. The first Court, however, held that the two classes of lands were undistinguishable on the spot and decreed ejectment and mesne profits on the ground that the defendants having failed to make out, with respect to any specific parcel or parcels of land, their occupation as raiyats for more than twelve years before the sale, were not protected under the proviso to Section 37. The Court of first appeal did not disturb the finding of fact arrived at by the first Court, but assuming it to be correct came. to the conclusion that the defendants were protected as they were "settled raiyats" under Section 20 of the Bengal Tenancy Act, 1885, and had under Section 21 of the Act, occupancy rights in all lands for the time being held by them in each particular village irrespective of the period of occupation of each particular piece of land. The plaintiff has preferred these second appeals and the main contention raised for him is that the defendants are not entitled to take advantage of the provisions contained in Secs.20 and 21 of the Bengal Tenancy Act and that their defences must fail on their failure to make out the existence of rights of occupancy as created by Act X of 1859, the only law contemplated by the framers of Act XI of 1859.

(3.) The purchaser of an entire estate sold under Act XI of 1859, is entitled to forthwith eject all under-tenants with certain exceptions, and one of these exceptions relates to raiyats with rights of occupancy at fixed rents or at rents assessable according to fixed rules under the laws in force. Is the expression "right of occupancy" limited to the right that could be acquired under, the rules laid down in Act X of 1859, or does it also cover "right of occupancy" that might be acquired; under laws promulgated since 1859 ?