AKHIL CHANDRA SEN Vs. TRIPURA CHARAN CHOWDHURY

JUDGEMENT

(1.) THIS appeal is concerned with certain dags, which I may classify as group-I and group II. The argument as regards group I is that the appellants must be taken to be occupancy raiyats in the estate sold to the plaintiffs, and they claim a protected interest in the dags covered by this group as against the plaintiffs, who as auction-purchasers of the taraf were entitled to cancel all the encumbrances. We have been referred on this point to the pattah granted in the year 1848, set out in the paper-book at page 13. From this it appears that what was given was a permanent raiyati interest described as istemrari kaimi raiyat and istemrari daimi kaimi pattah. If this was the grant of a permanent interest, and if, as is admitted, at the date of this grant there was no occupancy right which had matured, then it seems to me not possible that an occupancy right could be acquired after the date of the grant. But if we read this document in reference to this permanency as relating solely to the fixity of rent, then I think the argument of the learned Pleader for the respondents avails, that the appellants would in that case be in the position of raiyats at fixed rates. It is not every raiyat who is protected, but only an occupancy raiyat, and I think the distinction on which he has relied and which is that set out in the Bengal Tenancy Act, distinguishing occupancy raiyats from raiyats at fixed rates and non-occupancy raiyats, must be boyne in mind, and on this point he has referred to the case, Pachi Dasi v. Bala Das 2 Ind. Cas. 405 : 13 C.W.N. 1031. I must hold, therefore, that the appellants were not occupancy raiyats. They were, therefore, not protected from eviction in respect of the dags covered by group I. It seems that less can be said as regards the dags of group II because the Tehatian records that the raiyati belonged to one Guru Das. The argument of the appellant has been that as the lands are recorded as being raiyati (though of some third party), he is entitled to reap the benefit of that record and to be protected But he is in no way connected with Guru Das. Whatever answer Guru Das, as a raiyat, if he be such, may have against the plaintiff, it is not a matter which seems to me to concern the appellants, who have stated that there was a dur-raiyati under the raiyati of one Mohesh.

(2.) THE result is that this appeal fails and is dismissed with costs.