AGIN SINGH Vs. BHUDEO SINGH

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for ejectment sought on the ground that they are under-raiyats of the disputed land and refused to vacate it in spite of service of notice under Section 49, Bihar Tenancy Act. The suit was contested on various grounds with which we are and longer concerned in the appeal Both the Courts below have decreed the suit.1 The new point which has been raised in this appeal and must succeed is that under the provisions of the new Section 4 8tA, Bihar Tenancy Act, which was incorporated by the Amending Act, 11 of 1938 and came into force, during the pendency of this appeal, on 10th December 1938, the defendants must be deemed to have acquired occupancy right in the disputed land. The relevant portion of Section 48-A runs as follows: Every person who, for a period of 12 years, whether wholly or partly before or after the commencement of the Bihar Tenancy (Amendment) Act, 1938 has continuously held land as an under, raiyat in any village, whether under a lease or otherwise, shall he deemed to have acquired, on the expiration of that period, a right of occupancy in the land which he has so held for the said period. It is not disputed that the defendants continuously held the disputed land as under-raiyats for more than twelve years before the .institution of the suit. Now Section 48-A by use of the words "shall be deemed to have acquired" is expressly made retrospective. Therefore, by operation of this Section,. the defendants shall be deemed to have acquired occupancy right in the disputed land before the institution of the suit.

(2.) The effect of the words "shall be deemed to have" when used in a new statutory enactment came up for .consideration before their Lordships of the Judicial Committee in K.C. Mukerjee V/s. Ram Ratan Kuer . In that case their Lordships had to deal with Section 26-N (since repealed and replaced by Section 26-B), Bihar Tenancy Act, which came into force when the appeal before the Judicial Committee was pending. Section 26-N was in these terms: Every person claiming an interest as landlord in any holding on 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 1 January, 1923, and in the case of the transfer of a portion of a holding to have accepted the distribution of the rent of the holding as stated in the instrument of transfer, or if there is no such instrument, as settled between the transferor and the transferee. Their Lordships held that the words "shall be deemed to have given his consent to every transfer of such holding" dearly indicated that the Section was intended to be retrospective. Their Lordships further held that there being no saving clause the Section would apply to pending actions; and accordingly their Lordships decided the rights of the parties before them on the basis of that new Section. The same reasoning will apply with equal force in the present Case.

(3.) The only distinction which is sought to be made by Mr. Mullick on behalf of the respondents is that in the present Case a decree for ejectment had already been passed by the lower Courts and it was duly executed and possession taken before the new Section 48-A came into force. To my mind, this makes no difference. The suit shall be deemed to be still pending in appeal before us and we must have to decide the appeal according to the law that is now in force with retrospective effect. Here it may be useful to refer to certain decisions of this Court which are all based on the above cited Privy Council case, K.C. Hukerjee V/s. Ram Ratan Kuer, , and relate to Section 26-N, Bihar Tenancy Act. These are : Thakur Eal V/s. Issardyal Parshad AIR 1938 Pat 559; Mohammad Shafait V/s. Nithali Ram AIR 1937 Pat 887 and Chandrika Prasad Singh V/s. Ram Lal Sahu L.P.A. No. 20 of 1938, Decided on 2 August, 1939. In the first two cases their Lordships had to deal with the rights of unrecorded transferees of occupancy holdings who, having been dispossessed by landlord-purchasers under rent sales, sued them for recovery of possession.