PRAMATHA NATH BHATTACHARJEE Vs. SASHI BHUSAN BANERJEE

JUDGEMENT

(1.) This is an appeal by defendant 1 arising out of a suit for khas possession of about 15 bighas of land lying in Mouza Damra in the District of Bankura. The late Tara Prosanna Basu, the father of defendant 5 in the suit, held this mouza along with several other mouzas in patni right. He mortgaged by conditional sale the entire patni to Bapin Behari Banerjee and Jagannath Marwari on 2 May, 1912. Defendant 5 was adjudicated an insolvent on 21st February 1914. Bepin and Jagannath instituted a suit for foreclosure on the basis of the mortgage in their favour by Taraprosanna in the year 1915. During the pendency of this suit Taraprosanna died leaving defendant 5 as his only legal representative. The latter was substituted in place of the original mortgagor, but the receiver of the estate of defendant 5, appointed in the insolvency proceeding, was not made a party it the mortgage suit. On 19th September 1919 the mortgagees took possession of the mortgage properties on the basis of the final foreclosure decree obtained by them in the suit on the basis of the mortgage. Thereafter the interest of Jagannath passed by transfer to Bepin. In 1919 the receiver in insolvency brought a suit for redemption of the mortgage properties. This suit was decreed by the first Court on 5 February 1923. An appeal was taken by Bepin against the decree of the trial Court to this Court and this Court ultimately dismissed the redemption suit on 25th February 1924. The receiver applied for leave to appeal to His Majesty in Council on 15th January 1925, and leave was granted by this Court on 16 February of that year. On 4 May 1926 Bepin granted a mckarari raiyati lease of the disputed lands to the defendant-appellant. Their Lordships of the Judicial Committee allowed the receiver's appeal and restored the decree of the First Court on 3 March 1927. Thereafter the receiver deposited the mortgage money in Court and obtained possession of the mortgage properties on 21 February 1928, and realized rent from the tenants including the defendant-appellant after taking certain directions from the Court. The receiver conducted all these litigations with the fund supplied by the plaintiff. On 30 January 1929 he sold 12 annas share of the patni and granted dar patni settlement lease of the remaining four annas share to the plaintiff. On 21 August 1930 the present suit for ejectment was raised by the plaintiff.

(2.) The defence of the defendant-appellant, so far as it is relevant for the purposes of the present appeal, are two fold: (1) that he is a settled raiyat of Mouza Damra and consequently he has acquired occupancy right in the disputed lands and cannot be ejected, and (2) that the receiver from whom the plaintiff has derived his title having recognized him as a raiyat by receipt of rent, the plaintiff is bound to recognize him as a raiyat and cannot eject him. The trial Court dismissed the plaintiff's claim for khas possession. The plaintiff appealed to the lower Appellate Court. The learned District Judge has allowed the appeal and has passed a decree for ejectment against the appellant. Hence this second appeal.

(3.) The only point for determination in this appeal is whether the defendant-appellant is liable to be ejected from the disputed lands. It is an admitted fact that the appellant is a settled raiyat of Mouza Damra. Under Section 21, Ben. Ten. Act, every person who is a settled raiyat of a village within the meaning of Section 20 has a right of occupancy in all land for the time being held by him as a raiyat of that village. The question then is whether the appellant was in possession of these lands as a raiyat after obtaining lease of these lands from Bepin in the year 1926. The lease which was granted by Bepin in favour of the appellant was a lease in perpetuity ad a fixed rate. The finding of the lower Appellate Court is that the transaction is not an act of prudent management as the mortgagee in possession received a large amount as selami and reduced the rent which would be ordinarily payable for the lands of this class by cultivating raiyats. Again, this mokarari lease was granted during the pendency of the redemption suit. It is therefore hit by 8. 52, T.P. Act. But this section does not take away the rights of mortgagees in possession under Section 76, C1. (a), T.P. Act, after the redemption suit is instituted. Bepin therefore had the right to lease the lands in ordinary raiyati right for the period of his possession after the suit for redemption was instituted. It is true that he granted a mokarari lease and it cannot be operative as a mokarari lease. But by Section 8, T.P. Act, this transfer conferred upon the defendant such right as the mortgagee in possession was then capable of conferring. The appellant therefore acquired a right to cultivate these lands as a raiyat from Bepin in the year 1926, at least for the period during which the latter would continue in possession as mortgagee. He was in fact in possession as a raiyat till the mortgage was redeemed. He is therefore not liable to be ejected as he has acquired occupancy right in the lands under Section 21, Ben. Ten. Act.