KHETRA MOHUN GHOSE Vs. LAKHI KANTA PAL

JUDGEMENT

(1.) This is an appeal by the defendants against a decision of the Subordinate Judge of Howrah confirming a decision of the Munsif. The suit out of which this appeal arises was brought by the plaintiff's for possession of certain land on establishment of their tenancy right therein. The plaintiffs case was that (he lands in suit appertained to the chakran lands of Defendant No. 3 which he held under a service tenure under a zemindar; that the lands were resumed by the landlord on the surrender by Defendant No. 3 and that they were leased by the landlord to the present plaintiffs. The plaintiffs say that failing to obtain possession of the land leased to them they were forced to commence these proceedings.

(2.) Two contentions wore urged before us on behalf of the appellants. First of all they say that the lands were not chakran lands but niskar lands of Defendant No. 3 and that they had acquired occupancy rights in these lands by cultivating them as raiyats for a period of over 70 years, and secondly, they contended that even if the lands were chakran lands and not niskar lands they had acquired right of occupancy by their possession for the necessary period. The findings of both Courts were that the land were chakran and that the defendants had been in occupation thereof since the year 1851 but that no occupancy rights had been acquired having regard to the nature of the land. The appeal has been argued before us on behalf of the appellants on two grounds. First of all, it is stated that the decision that the lands were chakran and not niskar has been arrived at by the admission of inadmissible evidence that is, of statements contained in the documents of title of third parties and the second point is that occupancy rights can be acquired in these lands even if they are chakran lands. So far as the first point is concerned, clearly we think the documents Exhibits 2A and 2B were inadmissible but we think that the oral evidence was clearly admissible apart from the documents themselves. It is urged, however, before us that it is impossible for us to say in second appeal how much weight was attached by the lower appellate Court to the inadmissible evidence and that in any case the matter should be referred back to that Court for consideration of the oral evidence excluding the documents complained of. But having regard to the view we take on the second point it is not necessary to definitely decide this contention.

(3.) So far as the second point is concerned the conclusion I have come to is that occupancy right can be acquired in chakran lands and that such rights have been acquired by Defendant No. 2 in the land in suit and consequently, the appeal must succeed on this ground. Under the provisions of Section 181 of the Bengal Tenancy Act occupancy rights could not have been acquired if such rights had accrued after the passing of the Act itself. But these rights were acquired long prior to 1885 and they are in my opinion, protected by the provisions of Section 19 of that Act. It was suggested that the provisions of Section 181 govern the provisions of Section 19 but the view I take is that the provisions of 8.181 relate to the prevention of the acquisition of occupancy rights during the continuation of the Act itself and that they do not affect the rights acquired as under the provisions of Section 6 of Act X of 1859. That section provides that every raiyat who has cultivated or held land for a period of 12 years has a right of occupancy in the land so cultivated or held by him, and in my opinion, by virtue of that provision the appellants have acquired rights of occupancy in the land. It is contended before us on behalf of the respondent that the appellants and their predecessors-in interest were not raiyats but were in the position of under-raiyats under the holder of the chakran lands. But I confess that this argument does not appeal to me and it certainly was not given effect to in the two cases to which I shall presently refer which seem to me to govern the decision in this appeal. These two cases are Sitikanta Roy V/s. Bipradas Charan [1918] 27 C.L.J. 556 where it was held by this Court that under circumstances that seem to me similar to those now before us rights of occupancy can be acquired under Act X of 1859 and were not taken away by the provisions of Section 181 of the Bengal Tenancy Act. The second case is that of Bam Kumar Bhattacharya V/s. Ram Newaj Rajguru [1904] 31 Cal. 1021 where it was held that rights of occupancy might be acquired by a tenant even in choukidari chakran lands under Section 6 of Act X of 1859. In the judgment in that case the argument that the tenants there were tenants at will and not in the position of raiyats was considered and discarded; and accordingly, in my opinion, unless we are prepared to hold that these decisions are Wrong and refer the matter to a Full Bench the appeal is concluded thereby. I am not prepared to say that these decisions are not correct and accordingly, in my opinion, the appeal is concluded thereby.