MUHAMMAD SHAIAIT (SIC) Vs. NITHALI RAM

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiffs for recovery of possession of a holding which originally belonged to the defendants second party some of whom sold it to plaintiffs 1 and 2 in 1921. Plaintiffs 3 and 4 are sikmidars of plaintiffs 1 and 2. The principal defendant is the landlord of the holding who purchased it in execution of a decree (which has now been held to be a simple money decree) on 2 December, 1931 and got delivery of possession on 21 February 1932. That the decree was a simple money decree has not been questioned before us. The plaintiffs therefore instituted this suit on 26 July 1933 for recovery of possession of the holding on the ground that what the landlord purchased in execution of his money decree and of which he got delivery of possession was the right, title and interest of the judgment-debtors and not the holding itself. The suit was resisted on various grounds and was dismissed by the trial Court; but on appeal by the plaintiffs it has been decreed by the lower appellate Court and the principal defendant has preferred this second appeal.

(2.) The learned advocate for the appellant has attempted to secure the dismissal of the suit on the ground that the principal defendant being the landlord is entitled to retain possession of the holding unless the plaintiffs show a good title to it as against him. In other words the principal defendant wants to defend the suit not in his capacity as auction-purchaser in execution of the money decree but as a landlord. The argument is this. The defendants second party, the original raiyats of the holding, having sold it to the plaintiffs must be taken to have abandoned it and therefore the landlord, that is to say, the principal defendant was entitled to re- enter into it. It is contended that though he has obtained possession of the holding under the sale and delivery of possession in execution of a simple money decree but once he has taken possession of it he cannot be ousted as he was entitled to take possession of it independent of his purchase in execution of his decree. In my opinion this argument would have been unassailable but for the fact that in the meantime the Legislature has intervened by amending the Behar Tenancy Act. Section 26-N of the newly added sections runs thus: Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will made before the first day of January 1923, and etc....

(3.) The transfer in favour of the plaintiffs was on 26 June 1921 and therefore prior to the date specified in the section and by its clear words as soon as the Act came into force the landlord must be deemed to have given his consent. This being the case the plaintiffs have complete title to the land. It was held toy the Privy Council in K.C. Mukerjee V/s. Mt. Ram Ratan Kuer, that the Act has got retrospective effect and in that case it was applied to a pending litigation. Their Lordships observed: The object of this section can only be to quiet titles which are more than 10 years old, and to ensure that if during those 10 years the transferee has not been ejected he shall have the right to remain on the land. Within this class the Legislature has not thought fit to discriminate against tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlords and their accrued causes of action were to be abrogated, respect for pending suits over old transfers cannot be assumed.