GOLBAR BIBI Vs. ASWINI KUMAR SINHA ROY

JUDGEMENT

(1.) These are appeals by defendants 4 to 7 against the decree of the Subordinate Judge of Tippera dated 11 May 1926. Defendants 1 to 3 had a jote under a sikmi taluk in which the respondents, the appellants and some others are jointly interested. In execution of a money decree the plaintiffs purchased the holding in 1912. But it appears that they did not get possession of the same. In 1914 the appellants obtained a money-decree against the same tenants and sold the holding and obtained possession thereof. Thereupon the plaintiffs brought these two suits for recovery of possession of the lands included in the holding from the defendants. The defence was that the plaintiffs had no right in the sikmi and that the plaintiffs being part-owners of the sikmi were not legally entitled to evict the defendants who were also proprietors of the same taluk and were in possession by virtue of their auction-purchase. It was also pleaded that the tenancy being nontransferable the plaintiffs had acquired no right to it. Both the Courts below made a decree in favour of the plaintiffs minus the defendants share which is two annas three gandas.

(2.) Defendants 4 to 7 have appealed and it is argued on their behalf that the view of the law taken by the Courts below is wrong. It is contended that the tenancy being a nontransferable occupancy holding, Section 22, Ben. Ten. Act does not apply and that the plaintiffs by virtue of their purchase have acquired no right. In support of this contention reliance has been placed upon Ginsh Chandra Chowdhury V/s. Kedar Chandra Roy [1900] 27 Cal. 473 and Lakhi Kanta Das V/s. Balbhadra Prosad Das [1914] 19 C.L.J. 400. These cases were, however, decided on the law as it stood before the amendment of the Bengal Tenancy Act in 1908. The law as is now laid down by the authorities on this point will be considered later. Though the defendants in their written statement said that the tenancy was a nontransferable occupancy holding, the trial Court proceeded upon the assumption that Section 22 applied to the case. This was due. to the fact that in the Record-of-Rights on which the defendants base their claim the defendants were recorded as being in possession as cosharer maliks under Section 22, Ben. Ten. Act. In this state of things the case proceeded under Section 22 and the judgment of the Court below does not give any indication whatsoever that the question of transferability or nontransferability of the holding was ever mooted. The case in the lower appellate Court seems to have been argued on the basis of Section 22 and the decision arrived at by that Court is also passed with reference to that section. I will, therefore, first of all examine the correctness of the decision of the Court below with reference to Section 22, Ben. Ten. Act. Clause (2) as amended by Act 1 of 1908 East Bengal and Assam is: if the occupancy right in land is transferred to a parson jointly interested in the land as proprietor or permanent tenure-holder, such person shall have no right to hold the land as a raiyat, but shall hold it as proprietor or permanent tenure- holder, as the case may be, and shall pay to his cosharers a fair and equitable sum for the use and occupation of the same.

(3.) It means in simpler language that if a cosharer landlord purchases an occupancy holding which should be a transferable occupancy holding, he is entitled to hold it noi as a raiyat, but as a tenure-holder in the right which he has in the tenure subject to payment of a fair and equitable rent to the other cosharers. The object of the amendment has been explained in Purna Chandra Boy V/s. Mathura Mohan Saha A.I.R. 1923 Cal. 210, where the law is thus stated: The effect of the amended section is that the occupancy holding disappears, and the purchaser holds the land as a joint proprietor or joint tenure-holder, as the case may be. To put the matter briefly, the purchaser enjoys the land in his character of proprietor or tenure-holder and not as a raiyat. But, as upon the disappearance of the tenant right, all the holders of the superior interest would prima facia be entitled to possession, that one amongst them who is allowed to keep exclusive possession of the land is made to-pay his cosharers a fair and equitable sum for such use and occupation.