SASI KUMAR MAJUMDAR Vs. GOLAP BANU

JUDGEMENT

(1.) This appeal raises a short and an interesting point of law. The plaintiff's case is that the lands in suit were comprised in four raiyati holdings which belonged to one Lal Mia. The immediate landlord was one Ajijulla Munshi who was the proprietor of the estate within which these lands were situate. On 15 July 1918, Lal Mia got a sikmi taluki right under the proprietor by a patta which was granted by Ajijulla and he became thereby the landlord in respect of the four raiyati holdings held by him. The sikmi taluk was sold at a sale under Regulation 8 of 1819 on 16 May 1931 and the purchaser was the plaintiff. The suit has now been commenced by the plaintiff for recovery of possession of the lands in suit on the ground that he being a purchaser at a sale under Regulation 8 of 1819 and having annulled all incumbrances, Lal Mia had no right to remain in possession.

(2.) The trial Court decreed the suit in part. It gave the plaintiff a decree with regard to the lands which were recorded in Khatians Nos. 292 and 276, holding that the principle of merger applied and the raiyati interest of Lal Mia in respect of these plots of land merged in the superior rights of a sikmi talukdar on the acquisition of the sikmi in July 1918. With regard to two other raiyati holdings, the suit was dismissed on the ground that Lal Mia had other co- sharers and consequently the principle of merger had no application. Against this decision, an appeal was taken by the defendants to the lower Appellate Court and the Additional Subordinate Judge reversed the decision of the trial Court with regard to the lands of Khatian No. 292 holding inter alia that the principle of merger had no application and the case did not come within the purview of Section 22, Ben. Ten. Act. With regard to the lands recorded in Khatian No. 276, he has held that there is no merger but that the plaintiff is entitled to get khas possession on the ground that the raiyats had really abandoned the holding. Against this decree of the lower Appellate Court, there has been this second appeal preferred by the plaintiff and the appeal is limited to the lands which are recorded in Khatian No. 292.

(3.) Mr. Sen Gupta who appears in support of the appeal has contended before us that the decision of the Court of Appeal below was wrong and that the case would be governed by Section 22, Ben. Ten. Act. Now, it is quite clear that the lease being an agricultural lease, Section 111 of T.P. Act, has got no application and the case must be decided entirely upon the provision contained in Section 22, Ben. Ten. Act. It is not disputed that prior to the creation of the sikmi taluk, the immediate landlord of the raiyat was the proprietor of the estate and it cannot be said that by the creation of the sikmi the interest of the raiyat and that of the immediate landlord, namely, the proprietor, had coalesced. The immediate landlord did not acquire this interest of the raiyat by transfer, succession or otherwise, but he carved out an intermediate tenure holder's interest and interposed it between himself and the raiyat though in this case the intermediate tenure-holder was no other than the raiyat himself. We think that Section 22, Ben. Ten. Act, presupposes the existence of the superior interest as a separate entity before the act of transfer or succession could effect the merger. In other words, the two interests must have separate existence before the question of merger can come in. Here, before the sikmi patta was executed, the taluki interest into which the raiyati interest is said to have merged had no existence and we are unable to hold that when the immediate landlord simply creates an intermediate tenancy right between him and the actual raiyat, there would be a merger under Section 22 of the Ben. Ten. Act, simply because the intermediate tenant happened to be the raiyat. The view which we are taking is supported by a decision of this Court in Jogendra Krishna Roy V/s. Shafar Ali AIR 1923 Cal 373 and in that case Sir Ashutosh Mookerjee sitting with Chotzner, J. laid down the law that Section 22 would have no application where the raiyat him. self subsequently takes a tenure holder's right from the immediate landlord.