SHIBA KALI KUMAR Vs. CHUNI LAL CHATTERJEE

JUDGEMENT

(1.) (After stating facts the judgment proceeded.) It has first of all been argued that the land was not taken for an agricultural purpose and so it could not be governed by the Bengal Tenancy Act. The findings on this point are conclusive. The land was obviously taken for the purpose of a garden which has been held to be an agricultural purpose,

(2.) The next point taken is that the land is no longer governed by the Bengal Tenancy Act, but by the Transfer of Property Act; that it ceased to be governed by the Bengal Tenancy Act, when Act 1 of 1907, came into force and that the defendant's non-occupancy right was then extinguished. To support this part of his case, the appellant relies on Section 19(1), Bengal Tenancy Act as now amended by Act 1 of 1907. His argument is that Section 19(1), Bengal Tenancy Act, preserves, so far as land which was excluded from the operation of the Bengal Tenancy Act, by Act 1 of 1907, only the right of occupancy and that hence non-occupancy rights are destroyed by that section. He points out that Section 19(2) only preserves these rights in the case of lands which are excluded from the operation of the Bengal Tenancy Act, by Section 637, Calcutta Municipal Act and. reading the section as a whole contends that it was the intention of the legislature to destroy all rights excepting occupancy rights in the area excluded by Act. 1 of 1907 from the operation of the Bengal Tenancy Act. The sheet anchor of the respondent's case is the decision of Jotiram Khan V/s. Jonaki Nath Ghose [1914] 20 C.W.N. 253. Now it was held in Jotiram Khan V/s. Jonaki Nath Ghose [l914] 20 C.W.N. 253, that the status of a non-occupancy raiyat was not affected by the passing of the Bengal1 Tenancy Amendment Act (1 of 1907). The appellant contends that the decision is wrong and that the case should be referred to a Full Bench "of this Court.

(3.) As far as can be seen the rights of a non-occupancy raiyat were created by the Bengal Tenancy Act of 1885 ( Section 44 of that Act). Act 10 of 1859 certainly has no section corresponding to Section 44.