Girish Chandra Chaudhuri and Others vs Kedar Chandra Roy, and Another

The facts of this ease, so far as it is necessary to state them for the purposes of this appeal, are shortly these :-The Plaintiff''s and the Defendants Nos. 2 to 10 were the joint owners of a taluk appertaining to which there was a nontransferable occupancy holding belonging to one Chidam Mal. The Defendants Nos. 2 to 6 brought to sale and purchased that holding in execution of a money-decree against Chidam Mal and took possession of the land. The Plaintiff''s brought this suit to get joint possession with the Defendants of their twelve-anna share in the land. The first Court gave them a decree, which has been confirmed by the lower Appellate Court. It is argued on an inference based on sec. 22 of the Bengal Tenancy Act and the decision of a Division Bench of this Court in the case of Jawadul Huq v. Bam Das Saha. I. L. R. 24 Cal. 143 (1898) that the occupancy, right is severable from the tenancy right, and that although the occupancy right could not be sold, the sale and purchase of the tenancy right was good, and that the Plaintiff''s have consequently no right to interfere with the possession of the purchasing Defendants.

In this argument we see no force. Sec. 22 of the Bengal Tenancy Act does not make a non-transferable occupancy holding transferable when the purchaser happens to be one of the proprietors that section read in connection with other sections of the Act must be taken to refer to occupancy holdings which are of a transferable character, and the section enacts that when such a holding is transferred to one of the co-proprietors the occupancy right in the land so transferred shall cease to exist. The decision to which we have referred merely held that although by the operation of that section the occupancy right ceased to exist there might be a good transfer of the holding. Although under the provisions of sec. 22 of the Bengal Tenancy Act an occupancy right may be severable it is only severable in cases to which that section applies, and cannot be made severable in all cases. Apart from any special provision of law such as is contained in sec. 22 of the Bengal Tenancy Act and is applicable only to the cases referred to in that section, it does not seem possible on any principle to hold that in the case of a non-transferable occupancy holding, the holding can be sold without the right of occupancy so as to give the transferee a right to retain possession of it. The tenant who was in possession has left the land. It is now in the possession of the purchasing Defendants, and we think that the Subordinate Judge was right in treating the holding as abandoned. These are the only points which have been argued before us. The appeal is dismissed with costs.