Abbas Khan and Another vs Sk. Mohammad Hussain and Another

Rowland, J.—The facts established by the judgments of the Courts below are that Sheikh Mohammad Hussain plaintiff is the occupancy raiyat of certain holding within which Ramsewak has held as an under-raiyat about 9 kathas 12 dhoors continuously for about 24 years. The plaintiff alleged that this occupation was but recent. This was negatived. The plaintiff alleged misuse of the land unfitting it for the purposes of tenancy and this also was negatived.

The plaintiff alleged and it has been found that Ramsewak on 7th February 1939 sold the disputed land to Abbas and Bibi Aktari defendants first party whom the plaintiff sued to eject. The sale was after the passing of the amendment made in 1988 to the Bihar Tenancy Act. The Munsif dismissed the suit observing that u/s 26A, Bihar Tenancy Act, defendants second party having acquired a right of occupancy could transfer the holding to defendant 1 and plaintiff had failed to prove any of the conditions u/s 25, Bihar Tenancy Act, under which an occupancy raiyat could be ejected.

On appeal the Additional District Judge reversed this decision being of opinion that Section 26A did not confer any right of transfer on an under-raiyat even when read with Section 48B. The land was not therefore transferable without the consent of the immediate landlord namely the raiyat who thus became entitled to re-enter as against the purchaser.

This case seems to be the first in which the particular point has been raised whether the right of transfer of occupancy holdings conferred by Section 26A on every raiyat enables an under-raiyat having an occupancy right in land to transfer that land without his landlord''s consent. By Section 26A an occupancy holding is transfer, able. ''Holding'' is defined in Section 3(9), Bihar Tenancy Act, to mean a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy, clearly land not held by a raiyat is not a ''holding,'' and an under-raiyat is not a raiyat because Section 5(2) says:

A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder.

It is faintly suggested that a person who has an occupancy right is considered to have an occupancy holding whether he be a raiyat or under-raiyat; but chap. 5 in which Section 26A finds place is headed "occupancy raiyats," and from the context I have no doubt that "occupancy holding" in Section 26A refers to the holding of an occupancy raiyat and not the land of an under-raiyat having a right of occupancy. The right of occupancy was conferred in 1988 by a new Section 48A on any person who for 12 years had continuouly held land as an under-raiyat and it was under this provision that the defendants second party were deemed to have acquired the right of occupancy in the land; in suit. They therefore come within the description in Section 48B as "an under-raiyat who has acquired a right of occupancy in any land u/s 48A" and the question for decision is whether this section makes their position analogous to that of an occupancy raiyat in respect of transfer. What the section says is that he

shall be subject to the same provisions with respect to rights in trees and bamboos and the use of, and succession to and eviction from such land as Article occupancy raiyat.

The rights of an occupancy raiyat in respect of trees and bamboos are dealt with in. Section 28A; those in respect of the use of the land partly in 28 and partly 23A; those in respect of succession to the land in Section 26; in respect of eviction in Section 25. But Section 48B contains no suggestion to make applicable to an under-raiyat the provisions of Section 26A regarding transfers by sale, exchange or gift and bequests.

I agree with the learned Additional District Judge that the omission is significant and I infer that it was the in tention of the Legislature to leave the interest of an under-raiyat nontransferable as it was before the passing of the amendment in 1938. I should notice the point taken by the Munsif that the ejectment was sought by the landlord on a ground not mentioned'' in Section 25 of the Act and an under-raiyat having a right of occupancy is apparently by Section 48B entitled to the measure of protection given to a raiyat by Section 25; but the defendants first party cannot get any advantage from this line of reasoning because by the purchase they have not become underrraiyats with a right of occupancy.

In the result the appellants cannot in my opinion resist the suit and the decision of the lower appellate Court must be affirmed and the appeal dismissed with costs.