LAKHI CHARAN SAHA Vs. HAMID ALI

JUDGEMENT

(1.) This appeal arises out of a suit by the plaintiff appellant, who is the purchaser of an entire estate under Act XI of 1859, to eject the defendants. The, defendants and their predecessors in-interest, it is found, had been holding the lands at any rate from. 1838 as Raiyats, and had acquired a right of occupancy in the lands in suit, but the defendant Chunnu Miah and another in 1881 executed a daimi kaimi chirasthai (permanent Raiyati Kabuliyat). The Courts below have held that the interest of the defendants was protected under Section 37, of Act XL of 1859, and the plaintiff was not, therefore, entitled to khas possession, but was entitled to fair and equitable rent for the lands. The plaintiff has appealed to this Court.

(2.) Under Section 37 of Act XI of 1859, the purchaser at a revenue sale is not entitled to eject any Raiyat having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules under the laws in tores. On the facts stated, the defendants interest prima facie is that of a "Raiyat having a right of occupancy at a fixed rent."

(3.) At the time when the Revenue Sale -Law (Act XI of 1859) was passed, the law relating to landlord and tenant in force was Act X of 859, and under Section 6 of that Act every Raiyat who cultivated or held land for 12 years acquired a right of occupancy in such land. Under that Act there were two classes of occupancy Raiyats viz., Raiyats at fixed rates of rent, and occupancy Raiyats who did not hold at fixed rates of rent (see Sections 3, 4,5 and 6). Both these classes of occupancy Raiyats are protected under the proviso to Section 37 of Act XI, which provides that the purchaser shall not be entitled to eject any Raiyat having a right of occupancy at a fixed rent, or at a rent assessable according to fixed rules under the laws in force. "Occupancy Raiyats at fixed rates of rent" do not find any place in the V classification of "Raiyats" under the Bengal Tenancy Act. Under that Act there are occupancy Raiyats and Raiyats holding at fixed rates. But if a Raiyat had a right of occupancy at a fixed rent under Act X of 1859 (as the defendants in the present case had), we do not think that he lost his right of occupancy and the privileges attaching to it after the passing of the Bengal Tenancy Act, merely because occupancy Raiyats holding at fixed rates of rent are not separately mentioned in the classification of Raiyats under the Bengal Tenancy Act.