MAHABIR CHOUDHURI Vs. JADUNANDAN PRASAD SINGH

JUDGEMENT

(1.) The only question which ?arises in this appeal is whether the order of the Rent Reduction Officer reducing the rent of the holding for which rent is claimed by the plaintiff-appellant is ultra vires. The suit which has given rise to this appeal was brought by the plaintiff-respondent to recover rent for the years 1347-1349 in respect of several holdings including khatas Nos. 85 and 375 with which we are concerned in this appeal. The defence of the. appellant, who was the defendant in the suit, was that the rent of these holdings had been reduced under Section 112A, Bihar Tenancy Act, and the landlord was not entitled to claim any rent in excess of the amount which had been fixed in that proceeding. The plaintiff's reply to this contention was that the Rent Reduction Officer who reduced the rent purporting to act under Section 112A had no jurisdiction to reduce the rent and therefore his order was liable to be ignored. This contention has been upheld by both the Courts below and a decree has been passed in favour of the plaintiff for the full amount claimed. Hence this second appeal by the defendant.

(2.) The two holdings with which we are concerned were formerly diara lands, but the original tenant admittedly acquired a right of occupancy before the year 1933 when the record of rights was prepared in respect of the area within which the lands in question are situated. The tenant afterwards sold the two holdings to the present defendant. The plea of the landlord; was that under Section 180 no right of Occupancy had been acquired by the defendant and therefore Section 112A did not apply to the present holdings and the Rent Reduction Officer had no jurisdiction to reduce the rent. It appears to me, however, that this plea is based upon a misconception. It was conceded on behalf of the appellant that Section 180 fully applied to the original occupant of the land, and it is true that he could not have acquired a right of occupancy unless he had held the land for 12 continuous years but it is not disputed that the original occupant who transferred the land to the defendant had acquired a right of occupancy before the date of the transfer. That being so, the defendant must be held to be an occupancy raiyat. Section 180 does not contemplate that the occupancy right which has been already acquired by a tenant under its terms is extinguished automatically when the land is transferred and every successive transferee before he can claim occupancy right is re-quired to prove that he himself has been in occupation of the land for 12 continuous years. In this case the old tenant had acquired right of occupancy and as the occupancy holdings are now transferable, the defendant also must be treated as an occupancy raiyat. Section 26B, Bihar Tenancy Act, which is in force, deals with the case of those persons who became entitled to an occupancy holding by transfer at any time before the date of the commence, ment of the Bihar Tenancy Act, 1938. It provides that if such a person becomes entitled to an occupancy holding after January 1923, then he may, at any time after the date of the commencement of the Act, give notice of the transfer to the Collector and pay to the Collector the prescribed fee for the service of the notice on the landlord together with the cost necessary for its transmission to the landlord and the Collector thereupon must cause the notice to be served upon the landlord and his fee to be transmitted to him and thereupon the transfer becomes binding in the same manner and to the same extent as a transfer made after the Commencement of the Act. It is true that there is no evidence one way or the other whether the procedure prescribed in this section was followed, but it appears that in the rent reduction proceeding no objection was taken by the landlord to the effect that the defendant was not entitled to the benefit of Section 112A inasmuch as he was not an occupancy raiyat. Section 112B gives a right of appeal to the aggrieved party from an order under Section 112A, but no appeal was presented in this case by the landlord. There fore at this stage it cannot be held that the order of the Rent Reduction Officer was ultra vires and, in my opinion, the Courts below were wrong in giving a full decree to the landlord upon this view. In my judgment the order was binding upon the landlord and a decree should have been passed for the reduced amount of rent in respect of the holding with which we are concerned. I would, therefore, allow this appeal and direct that the decree of the Court below be modified as already indicated. The appellant is entitled to half his costs. Sinha, J.

(3.) I agree.