KATYAYANI DEBI Vs. UDOY KUMAR DAS

JUDGEMENT

(1.) THIS is an appeal from the High Court of Judicature in Bengal in two actions for arrears of rent brought by the respondent against the appellant. The respondent is the successor in title to a certain Tagore, who, on November 27, 1878, granted a reclamation lease of certain lands which were then lying waste and in a state of jungle, at a rate which fell to be calculated at thirteen annas per bigha of the area embraced in the lease. Since the date of the lease the greater part of the area has been brought under cultivation and has been in the possession of several successive tenants. The appellant acquired the tenant's rights in the lands as a purchaser at a sale in execution of a decree for arrears of rent due by the prior tenant.

(2.) FOR the purposes of this appeal, in which a single question of importance has been raised, it is only necessary to consider the state of matters at the time of the appellant's purchase, which took place in 1894. The appellant then obtained possession of the whole lands within the boundaries mentioned in the lease with two exceptions : (1.) a small area of sixty-one acres or thereby to which her husband had established a paramount title dating from 1875 against the original lessor, and (2.) a much larger area of which her husband had taken possession without any title some six years previously and of which he had continued to hold possession, notwithstanding certain efforts by the previous tenant to eject him.

(3.) THE lease, which is evidenced by the kabuliyat of November 27, 1878, is of a kind which is familiar in the province of Bengal. As it expressly bears it is permanent and transferable and at a fixed rent. The tenant under such a lease virtually becomes the proprietor of the surface of the lands subject only to the payment of the stipulated rent, and the lessor and succeeding landlords have no interest in the lands except in so far as they form a security for payment of the rent. When the rent falls into arrear the landlord's only remedy is to bring the tenure to sale by public auction on the execution of a decree for payment of rent. The purchaser of the tenure, as has now been settled by a long series of authorities in the Indian Courts, which are enumerated in the learned and exhaustive judgment of Mookerjee J., acquires title to the lands on the terms of the original lease unaffected by any encumbrances created by previous tenants. An encumbrance is defined by s. 161 of the Bengal Tenancy Act, 1885, as any " right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein, and not being a protected interest." There is no question in this case of any protected interest, but only of such right as the appellant's late husband may have acquired in respect of his possession of a portion of the lands embraced in the lease for a period exceeding twelve years.