MIDNAPORE ZEMINDARY COMPANY LTD Vs. HRISHIKESH GHOSH

JUDGEMENT

(1.) The question referred for the decision of the Fall Bench is whether the right of a non- occupancy raiyat is heritable. In Karim Chowkidar v. Sundar Bewa (1896). I.L.R. 24 Calc. 207 it was held by a Division Bench that the right of a non-occupancy raiyat (who does not hold under any express agreement) in his holding is not heritable. In arriving at this conclusion, Mr. Justice Banerjee says that "under the law as it stood before the Bengal Tenancy Act was passed, non-occupancy raiyats not holding under any express engagements, were treated as tenants-at-will or as tenants from year to year. [See Act X of 1859, Section 25; see also the observations of Mr. Justice Field in his Introduction to the Bengal Regulations, p. 40, and those of Mr. Justice Trevor in Thakooranee Dessee v. Bisheshur Mookerjee (1865) B.L.R.F.B. 202; 3 W.R. (Act X) 29.] Under the old law, non-occupancy raiyats were the lowest class of raiyats and, if the respondents contention be correct, it would follow that all raiyati holdings were transferable. But this would be somewhat inconsistent with certain provisions of law, such as Regulation VIII of 1819, Section 11, Clause 3, which speak of hereditary raiyats."

(2.) Any opinion of Mr. Justice Banerjee is entitled to respect, but the passage we have cited is open to question.

(3.) It is not accurate to speak of non-occupancy raiyats under the old law. The expression non-occupancy raiyat first appears in the Bengal Tenancy Act and the holding of non- occupancy raiyats is not the exact counterpart of any holding under the old law, by which we understand the learned Judge to mean the law prior to 1859. For the present purpose it is sufficiently accurate to say that raiyats in early days were either khudkast or paikast. It is unnecessary to discuss the several kinds of these two classes of raiyats, but contrasting one class with the other, it may be said that the position of the khudkast was unquestionably superior to that of the paikast.