ABHOY CHARAN MODAK Vs. RAM SUNDER SHAHA

JUDGEMENT

(1.) In this case the plaintiff who is the appellant brought a suit to recover khas possession of the lands of schedules kha and ga to the plaint on the allegation that the said lands were khas khamar lands appertaining to seven piece share of the patni which originally belonged to defendant 1's father Ram Nath Shah and which was purchased subsequently by the plaintiff in an auction sale in execution of a mortgage decree. The plaintiff's case is that defendant 1's father who was a patnidar to the extent of seven pice share in the patni had purchased certain holdings under the patni and was in possession of them. The patni right of defendant 1's father having been sold defendant had no right to retain possession of the khas land which passed with the patni to the plaintiff. The trial Court dismissed the plaintiff's suit in respect of the schedule kha land but decreed it in respect of ga. The lower appellate Court on appeal by the plaintiff confirmed the decree of the trial Court dismissing the suit in respect of the schedule kha lands.

(2.) The point that arises in this case is the effect of the purchase by defendant 1's father of the raiyati holdings under the patni. These purchases were made in 1883 and 1896 prior to the amendment of Section 22, Ben. Ten, Act, by the East Bengal and Assam Act of 1908. If by his purchase defendant 1's father under the old Section 22, Clause (2), lost only the occupancy right but the holdings were not extinguished, the plaintiff is not entitled to recover possession of them unless the amending Act of 1908 had retrospective effect which it has been held it has not. If on the other hand under the law defendant 1's father's purchase destroyed not only the occupancy right in the holdings but also the holdings themselves the plaintiff is entitled to succeed.

(3.) If the question raised in the case were res integra we would have given careful consideration to the submissions made on behalf of the appellant. But it seems to be covered by a Full-Bench decision of this Court and a number of cases following it. In the case of Jawadul Huq V/s. Ram Das Saha [1897] 24 Cal. 143, a case tried by a Bench of five Judges it was held that under Sub-section 2 Section 22, Ben. Ten. Act before the amendment, on a proprietor purchasing an occupancy holding the holding did not cease to exist but the right of occupancy ceased. This decision was followed by the Pull Bench in Ram Mohan Pal V/s. Sheikh Kachu [1905] 32 Cal. 386 and it has since been followed in every reported case in which the point arose for consideration : Akhil Chandra Biswas V/s. Husan All Sowdagar [1913] 18 C.L.J. 262, Purna Chandra Roy V/s. Mathura Mohan Shah A.I.R. 1923 Cal. 210 and Profulla Nath Tagore V/s. Secy. of State A.I.R. 1921 Cal. 429. There is one reported case which seems to have taken a different view. In Roshan Ali V/s. Chandra Mohan Das A.I.R. 1923 Cal. 701 it was practically held that the law after the amendment of Section 22 was the same as before it and the proprietor purchasing an occupancy holding did not hold the raiyati but possessed the holdings as proprietor. It will not be profitable to consider the ratio decidendi of this case as we are bound by the Full Bench decision above referred to and the cases in which it was followed. But it is argued that the Full Bench decision in Ram Mohon Pal V/s. Sheikh Kachu [1905] 32 Cal. 386 has been impliedly overruled by their Lordships of the Judicial Committee in the Midnapur Zemindari Co. V/s. Naresh Narayan Roy A.I.R. 1924 P.C. That was a suit for a partition by Naresh Narayan Roy against the Midnapur Zemindari Company in which one of the defences put forward by the company was that the company held jote rights in the lands in suit. In the authorized report it does not appear when the holdings were acquired by the company before or after the amendment of 1908. But assuming that it was before the amendment it appears that their Lordships were considering the question which was raised, namely whether the company obtained jote rights in the holdings acquired by them. On this point their Lordships observed thus: No cosharer can as against his cosharers obtain any jote right, a right of permanent occupancy, in the lands held in common nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them.