Durga Narayan Sen vs Phanindra Nath Sen

Renupada Mukherjee, J.—This appeal raises a pure question of law, namely, whether the holding of an under-raiyati in which he has a right of occupancy is transferable without the consent of his immediate landlord. The question has arisen in the following way:

Deceased Adhar Chandra Sen, the predecessor-in-interest of substituted Appellant Durga Narayan Sen, instituted the suit out of which this appeal has arisen for recovery of khas possession of two plots of land upon a declaration of his raiyati right thereto. The two plots have been recorded as bastu lands in khatians Nos. 273 and 512 of mouza Dubrajhat and one Nalinakshya Pal has been recorded as a korfa raiyat under Adhar Sen in respect of both the plots. The jama of one of the plots is Rupee 1 per year and of the other only 4 annas per year. The recording of these two korfa tenancies was challenged by the Plaintiff of the trial court as erroneous and he claimed khas possession of the lands against the two Defendants of the trial court alleging that the latter had not acquired any right to the disputed lands by their alleged purchase from the heirs of Nalinakshya.

The Defendants contended in the trial court that the entries in the c.s. records were correct and the Plaintiff was not entitled to khas possession of the disputed lands because Defendant No. 2 of the trial court who was wife of the other Defendant, had acquired a valid title to the lands by purchase from the heirs of Nalinakshya Pal. The trial court upheld this contention of the Defendants and decreed the suit in part declaring Plaintiff''s raiyati right to the disputed lands, but dismissed his claim for khas possession on the finding that the entries in the c.s. record were correct.

This decree against which the Plaintiff preferred an appeal, was affirmed by the lower appellate court. So the Plaintiff has come to this Court in Second Appeal.

It has already been stated that the original Plaintiff died during the pendency of the appeal in this Court and his son and heir was substituted in his place. Original Defendant No. 1 also died during the pendency of the High Court appeal and his heirs were substituted in his place. The substituted minor Respondents were represented by Mr. Chatterjee in this Court.

Mr. Sen Gupta appearing on behalf of the Plaintiff-Appellant submitted that he is not in a position to controvert the concurrent findings of the courts below that the presumption raised by the entries in the record of rights has not been rebutted and so it should be held that Nalinakshya had an under-raiyati interest in the disputed lands which had been purchased by the Respondents from the heirs of Nalinakshya. But Mr. Sen Gupta contended that this purchase was made without the consent of the immediate landlord Adhar Sen and so it is not valid against him or his successor-in-interest.

In the above connection reliance was placed by Mr. Sen Gupta on Section 48F of the Bengal Tenancy Act which runs in the following terms:

The holding of an under-raiyat shall descend in the same manner as other immoveable property, but, subject to the provisions of Sub-section (2) of Section 48G, shall not be transferable except with the consent of the landlord.

Mr. Sarkar appearing on behalf of the Respondents contended, on the other hand, that the disputed holdings were under-raiyati holdings in which the tenant had an occupancy right and so the transfer would be governed by Sub-section (2) of Section 48G of the Bengal Tenancy Act and the consent of the immediate landlord would not be necessary for the validity of the transfer of such holdings as against the immediate landlord. Upon an interpretation of Sections 48F and 480(2) of the Bengal Tenancy Act read with Section 26B of the same Act, I am of opinion that this contention of Mr. Sarkar is sound and must be given effect to.

Section 48F of the Bengal Tenancy Act lays down that the holding of an under-raiyat shall not be transferable except with the consent of the landlord subject to the provisions of Sub-section (2) of Section 48G of the same Act. This Sub-section runs in the following terms:

(2) Every under-raiyat who has a right of occupancy in his holding shall have, as regards his immediate landlord, all the rights and liabilities of a raiyat with a right of occupancy, as set forth in-

(i) Chapter v. other than those conferred or imposed by Sections 20, 21 and 22.

(ii) Sections 65, 116 and 178 so far as possible, and

(iii) Chapter XIV.

and his holding, as against such landlord, shall be deemed to be the holding of an occupancy-raiyat for the purposes of the said sections or Chapters.

The closing words of the above Sub-section that the holding of an under-raiyat who has a right of occupancy in his holding shall, as against his landlords, be deemed to be the holding of an occupancy-raiyat for the purpose of the sections and chapters mentioned in Sub-section (2) of Section 48G are very significant. From the above Sub-section of Section 48G it will be clear that the provisions of Section 26B of Chapter v. of the Bengal Tenancy Act will govern the holding of an under-raiyat, who has got a right of occupancy in his holding. Section 26B runs as follows:

The holding of an occupancy-raiyat or a share or a portion thereof, together with the right of occupancy therein, shall, subject to the provisions of this Act, be capable of being transferred in the same manner and to the same extent as other immoveable property.

If Section 26B and Sub-section (2) of Section 48G are read together then the conclusion will become irresistible that only such limitations on transfer would apply in the case of a transfer by an under-raiyat having a right of occupancy as apply in the case of a raiyat with a right of occupancy. The consent of the landlord not being necessary for the validity of a transfer of an occupancy-raiyati holding as against the landlord such consent is also unnecessary in the case of transfer of an under-raiyati holding in which the under-raiyat has a right of occupancy. There does not appear to be any decided case on this point. At least none could be pointed out by the learned advocates on either side. The above conclusion however seems to be inevitable upon a proper interpretation of Section 48F, Sub-section (2) of Section 48G and Section 26B of the Bengal Tenancy Act. Section 48F of the Bengal Tenancy Act which requires the consent of the landlord, therefore, applies to a transfer of an under-raiyati holding in which the under-raiyat has no right of occupancy. The expression "subject to the provisions of Sub-section (2) of Section 48G" takes a transfer of an under-raiyati holding in which the under- raiyat has got a right of occupancy outside the ambit of Section 48F and brings it within the purview of Sub-section (2) of Section 48G and Section 26B which make the consent of the landlord to the transfer unnecessary.

I, therefore, hold that the transfer in favour of the Respondents in the present case is valid and binding on the Appellant.

The only point taken in this appeal by Mr. Sen Gupta on behalf of the Appellant having failed, this appeal is dismissed with costs to the Respondents.

Leave is asked for on behalf of the Appellant to file an appeal under Clause 15 of the Letters Patent, and is refused.