Agin Singh and Another vs Bhudeo Singh and Another

Chatterji, J.—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 u/s 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.

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 AIR 1936 49 (Privy Council) . In that case their Lordships had to deal with Section 26-N (since repealed and replaced by Section 26-B), Bihar Tenancy Act, which came into force when the appeal before the Judicial Committee was pending.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 1st 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.

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, AIR 1936 49 (Privy Council) , and relate to Section 26-N, Bihar Tenancy Act. These are : Thakur Eal v. Issardyal Parshad AIR 1938 Pat 559; Mohammad Shafait v. Nithali Ram AIR 1937 Pat 887 and Chandrika Prasad Singh v. Ram Lal Sahu L.P.A. No. 20 of 1938, Decided on 2nd 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.

Their Lordships held that those transferees had a valid title by virtue of Section 26-N and were therefore entitled to recover possession. In the last case in which the position of the parties was the reverse, that is to say, the landlord-purchaser under rent-sale was the plaintiff and the unrecorded transferee the defendant their Lordships dismissed the suit on the ground that the defendant was protected u/s 26-N, Bihar Tenancy Act. The result of these decisions is that Section 26-N, on account of its retrospective operation, had the effect of reviving rights which had already been extinguished. To put it more clearly, the rent-sales had already extinguished the rights of the unrecorded transferees but Section 26-N revived those rights.

There is therefore no escape from the position that under the provisions of the new Section 48-A, Bihar Tenancy Act, the defendants had occupancy rights in respect of the disputed land at the date of the suit and as such were protected from eviction. The result therefore is that this appeal must be allowed and the decrees of the Courts below set aside and the suit dismissed. In the circumstances the parties should bear their own costs throughout.

Rowland, J.

I agree.