MIDNAPORE ZAMINDARI CO LTD Vs. SADHUMONI DASI

JUDGEMENT

(1.) In these cases the plaintiff-appellant brought five analogous suits. The allegation was that on the 24 June 1921, he purchased a tenure in an auction-sale and subsequently took possession through Court. The defendants were mokarari raiyats under the tenure-holder and so their tenancies, not being protected interests, were liable to be aunulled and accordingly notices were issued under Section 167, Bengal Tenancy Act, in August 1922. The defendants not having vacated the land, these suits were brought. The first Court dismissed the suits and so has the Additional District Judge on appeal. The finding of fact of the lower appellate Court is that these holdings came into existence many years ago, but not before the Permanent Settlement. They were occupancy holdings and were recognized as such. But at the time of the last record-of-rights they were recorded as holdings of raiyats holding at fixed rents. It is also found that the plaintiff recognized the defendants as raiyats at fixed rents, and that the defendants, though they were originally occupancy raiyats, had acquired the rights of raiyabs at fixed rents by the conduct of the landlord.

(2.) The only point which is urged before us is the question as to whether the interest of the raiyats at fixed rent is a protected interest under Section 160, Bengal Tenancy Act. Now these rights were at their inception occupancy rights and the right to hold at fixed rents subsequently accrued to them. It is argued for the appellant that this Court should follow the opinion expressed by Mr. Justice Mukerji in the case of Bhut Nath Naskar V/s. Manmotho Nath Mitra [1909] 13 C.W.N. 1025. In that case that learned Judge observed that the Bengal Tenancy Act made a well-defined distinction between a raiyat holding at a fixed rate of rent and an occupancy raiyat : and that in Section 160 reference has been made expressly to a right of occupancy and the right of a non-occupancy raiyat, but that no mention is made of the right of a raiyat at a fixed rate of rent and that the inference, therefore, seems to be reasonable that the intention of the legislature in Section 160 was to protect from ejectment a raiyat who possesses a right of occupancy as also a raiyat who possesses the right of a non- occupancy raiyat and not to protect from ejectment a raiyat holding at a fixed rate of rent. This dictum of Mr. Justice Mukerji, however, was not concurred in by the late learned Chief Justice with whom he sat. This is not, therefore, a ruling by which we are bound and which we shall show has not been followed.

(3.) The next case is of Abdul Gani Chowdhury V/s. Makbul Ali [1914] 42 Cal. 745. In that case the chief consideration was the proviso (3) to Section 37, Act 11, 1859, which says that nothing in that section should be construed to entitle a purchaser as aforesaid to eject any raiyat having a right of occupancy at a fixed rate. But it was held in that case that a person who has obtained an occupancy right does not, by obtaining a grant of fixed rate, lose that right and, though that ruling may in one way be distinguished on the ground that it was passed without reference to the wording of Section 160, Bengal Tenancy Act, this statement shows that the mere fact that an occupancy raiyat obtained a grant at a fixed rent shall not make him cease to have the right of occupancy. In the case of Lakhi Charan Saha V/s. Hamid Ali [1917] 27 C.L.J. 284, which also came up under Section 37. Revenue Sale Law, the same view was expressed, and the case of Abdul Gani Chowdhury V/s. Makbul Ali [1914] 42 Cal. 745 was followed.