Biramali Sheikh Shikdar vs Gopikanta Shaha

This was a suit brought by the Plaintiff-Respondent to recover possession of some land constituting a ryoti holding of the Defendant with the right of occupancy, on the allegation that the Plaintiff purchased the same at a sale in execution of a decree for money obtained by him against the Defendant, the Plaintiff further alleging that he had, some time after the sale, obtained from the landlord a settlement of the same. The defence in substance was that the holding in question was not transferable by sale, and that the Plaintiff, therefore, acquired no right by his purchase.

The first Court found for the Defendant and dismissed the suit. On appeal the lower Appellate Court has reversed the decision of the first Court and given the Plaintiff a decree.

In second appeal, it is contended for the Defendant that the decision of the lower Appellate Court is wrong, inasmuch as the holding in question being merely a ryoti-holding with a right of occupancy was not transferable, there being no evidence of any custom in favour of the transferability of such holdings, and that the lower Appellate Court ought to have held that the Plaintiff had acquired no right by his purchase. On the side of the Plaintiff-Respondent, it was contended in the first place that section 244, C. C. P., was a bar to the Defendant''s raising the question whether the Plaintiff acquired any right by his auction purchase, and in the second place that, according to the law as enacted in the Bengal Tenancy Act, a right of occupancy is transferable unless the transfer is objected to by the landlord. The two questions, therefore, that arise for determination in this appeal are--first, whether section 244, C. C. P., is a bar to the Defendant''s contention that the Plaintiff acquired no right by his auction-purchase, and second, whether a ryoti holding in which the ryot has only a right of occupancy is transferable in the absence of any custom or local usage in favour of its transferability.

We are of opinion that the first question must be answered in the negative. In support of the contention that section 244 was a bar to the suit, the case of Basti Ram v. Fattu I. L. R. 8 All. 146 was cited. But that case is quite distinguishable from the present. There the judgment-debtor, whose occupancy holding had been sold, brought a suit to establish his tenant''s right to the holding, notwithstanding the sale on the ground that an occupancy right was not saleable by law, and it was held that he was not entitled to maintain the suit, section 244, C. C. P., being a bar to such a suit.

In the present case, the party who raises the objection that the plaintiff has acquired no right by his auction-purchase, because the holding sold was a non transferable one, has not brought any suit. He is only raising that objection in defence to the suit which the other side has brought, and section 244 is not, in our opinion, any bar to this plea being raised by the Defendant in his defence. All that section 244 enacts is that certain questions therein specified shall be determined by the order of the Court executing the decree and not by separate suit; and granting that the question that the Defendant now raises was one that came within the scope of section 244, still it does not follow that a Defendant is precluded from raising that question by the provisions of section 244 when the question was not raised in the execution-proceedings and has not been determined. The view that we take of section 244 is that it bars a suit brought for the determination of certain questions, but it does not bar the trial of any issue involving in those questions, if the issue is raised at the instance of a Defendant in a suit brought against him. In our opinion, section 244 in this respect differs from section 13, C. C. P., which not only bars the trial of a suit or of an issue where the suit or the issue has actually been previously heard and determined, but also the trial of an issue which might and ought to have been raised in a previous suit by either party. Of course, it would have been different if the question that is now raised had been raised in the proceedings u/s 244 and determined, But then the trial of the issue would have been barred not u/s 244 by its own force, but u/s 13 as being a matter that was res judicata; a decision u/s 244 having the force of a decree. If section 244 was a bar to anything in a case like this, it would be a bar to the suit brought by the Plaintiff, for it was competent to the Plaintiff to have obtained a decision of the question that is now raised by instituting proceedings u/s 244.

The answer to the second question must depend in the first instance upon the provision of the Bengal Tenancy Act, which governs this case. Now, referring to the chapter relating to occupancy rights, that is, Chapter V, while section 26 expressly makes occupancy rights heritable, there is no provision in this chapter, such as we find in the two preceding chapters relating to tenures and ryoti-holdings at fixed rates, declaring occupancy holdings to be transferable. This omission, to our minds, clearly indicates that the Legislature did not intend to make occupancy rights transferable. Great stress was laid upon section 65 of the Bengal Tenancy Act as showing that the holding of an occupancy ryot is intended to be made transferable; and section 73 of the Act was also referred to as pointing to the same conclusion. But we are of opinion that neither section 65 nor section 73 bears out the contention of the learned vakil for the Respondent. Section 65 enacts that where a tenant has an occupancy right, he shall not be liable to ejectment for arrears of rent, but his holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon. That, no doubt, makes an occupancy holding saleable at the instance of the landlord in execution of a decree for rent; but though that is so, it does not follow from that, that an occupancy holding is saleable at the instance of the occupancy ryot or of any creditor of his other than his landlord seeking to obtain satisfaction of his decree for arrears of rent. Such an inference is, in our opinion, clearly negatived by the absence in Chapter V of any provision relating to the transferability of occupancy holdings. Nor does section 73 warrant any contrary conclusion, seeing that there are cases in which occupancy ryots may transfer their holdings without the consent of the landlord. We mean cases in which such holdings are transferable by custom or local usage. Of course, if occupancy holdings were transferable under the law, as it stood before the passing of the Bengal Tenancy Act, they would continue to be transferable, as there is nothing in the Act to the contrary. If, on the other hand, they were not transferable before the Bengal Tenancy Act came into operation, then, as the result of an examination of the Bengal Tenancy Act shows, they have not been rendered transferable by that enactment, the old law in that respect continues unaltered. This brings us to the consideration of the old law on the subject; and that need not detain us long, as the old law on the subject is clearly and conclusively laid down by a Full Bench of this Court in the case of Narendra Narain Roy v. Eshan Chandra Sen 22 W. R. 22. In that case it was held that a right of occupancy was a right that was personal to the ryot, and could not be transferred by sale. It may be anomalous that a landlord may in satisfaction of his decree for arrears of rent sell an occupancy holding, and yet neither the occupancy ryot nor any creditor of his can sell it. But if there is any anomaly, we must take it that the anomaly has been intentionally created. It may well be that the Legislature thought it desirable not to make occupancy holdings liable to be cancelled for arrears of rent, as they were under the old law, and, as a compensation to the landlord, it was enacted that the landlord may bring occupancy holdings to sale for the satisfaction of any decree for arrears of rent due thereon; and yet the Legislature might have thought it undesirable to make occupancy holding freely transferable by the occupancy ryot or at the instance of his creditors apprehending that the effect of such free transferability would, in many instances, be to place the holdings of cultivating ryots in the possession of money-lenders, and to place the ryots themselves at their mercy.

It remains now to consider the effect of the landlord''s consent to the transfer under which the Plaintiff claims. Ordinarily, the only persons interested in impugning the validity of the transfer of an occupancy ryot are the landlords, and where the former transfers his holding and the latter accepts the transferee in the place of the former tenant, there may arise no difficulty in the way of the transfer being given effect to. But that case is very different from the one now before us, where the transfer has been effected by compulsory sale at the instance of the ryot''s creditor, and the landlord''s recognition has been obtained years after the transfer, although, since the purchase, he had been receiving rent from the former tenant. For all these reasons we are of opinion that the second question raised in the case should also be answered in the negative. The result is that the decree of the lower Appellate Court must be set aside, and that of the first Court restored with costs in this Court and in the Court of Appeal below.