ABINASH CHANDRA GARGARY Vs. RAJ KUMAR SARDAR

JUDGEMENT

(1.) This rule is directed against an appellate order of the learned Subordinate Judge of Khulna by which he allowed an application to set aside a rent execution sale under Section 174(3), Ben. Ten. Act. The applicant was an under-raiyat of the holding sold, and the main question raised in the case is as to his locus standi to make the application. He is opposite party No. 1 to this rule. The petitioner is the decree-holder who made the auction purchase himself. The raiyats judgment-debtors whose holding was sold are opposite parties Nos. 2 to 7. The petitioner's contention which succeeded in the first Court, but failed to convince the learned Subordinate Judge on appeal, was that opposite party No. 1 was not a person whose interest is affected by the sale" within the meaning of Section 174(3), and was not therefore competent to make the application. The main ground on which this contention was rested was that the lease (Ex. 1) under which the under-raiyati interest was held was hit by Section 48-H, Ben. Ten. Act, and could not therefore create any valid interest in the holding. The lease was what is called a bemeadi potta, that is to say a lease without any definite term specified in it, and as the learned Subordinate Judge points out, there is nothing in the potta to show that it was meant to be a lease in perpetuity. All the same it was argued, it came within the mischief of Section 48-H, which provides that "no lease to an under-raiyat for a term exceeding twelve years shall be registered," unless a landlord's fee of the stated amount is paid to the registering officer. Admittedly, no such fee was paid on the registration of the present lease.

(2.) The argument did not find favour with the learned Subordinate Judge, but has been strenuously pressed before me by Mr. Sen. It will be seen that Section 48-H in terms refers to a lease "for a term exceeding 12 years," and prima facie one fails to see how a lease in which no term is stated can be brought within these words. Under the old Section 85 of the Act, an under-raiyati lease could not be created for a term exceeding nine years. That Section has been now repealed, and there is no longer any restriction as to the period for which such a lease may be made to run. It does not however follow from this that where no term is stated, it must be presumed that the lease is a perpetual lease or at any rate a lease for a term exceeding 12 years. It seems to me that a bemeadi lease such as we have to deal with in this case is outside the scope of Section 48-H.

(3.) Mr. Sen vehemently contended that this would be putting an unduly narrow construction on the words used in Section 48-H, which would open the door to an evasion of the statutory provision which was enacted in this Section for the benefit of landlords. I quite agree with Mr. Sen that such a consequence would be repugnant to the letter and spirit of the Section, but this result would follow if only a bemeadi lease could be said to confer on the under-raiyat the same rights as a lease for a term exceeding 12 years. I am not at all sure however that there is anything in any of the provisions of the Act to justify Mr. Sen's apprehensions. Mr. Sen directed my attention to the provisions of Section 48-0, which corresponds to old Section 49, and he particularly referred to Clauses (c) and (d) of that Section. The point he tried to make was that a bemeadi lease or a lease in which no definite term was stated would not come either under Clause (c) or under Clause (d), and that an under-raiyat holding under such a lease was consequently in a position to enjoy perpetual immunity from ejectment. In this view, the lease would to all intents and purposes be a lease in perpetuity. I do not think the interpretation suggested is at all correct. A similar argument had been put forwad on the construction of the corresponding clauses in old Section 49, but turned down by a Full Bench of this Court in Raj Kumari Debi V/s. Barkatullah Mandal (1912) 39 Cal. 278. In my opinion, the words " written lease" in Clauses (c) of Section 48-C must be read as restricted by the word "term" used before, and mean a written lease which is for a term, and the very same words occurring in Clause (d) must be given the same meaning. In other words, Clause (d) will apply when an under-raiyat holds otherwise than under a written lease with a definite term. It follows that an under-raiyat holding under a lease in which no term is stated would be liable to ejectment under the provisions of Clause (d), and there can be no ground for suggesting that he would be virtually holding under a perpetual lease.