Jai Narain Raut and Others vs Mt. Dhaneshari and Others

Agarwala, J.—This is an appeal by the defendants who are under-raiyats under the plaintiffs.

In 1926 the plaintiffs served on the defendants a notice u/s 49, Bihar Tenancy Act, calling upon them to vacate the land in dispute. As the defendants did not comply with this notice, the plaintiffs sued in ejectment in 1937. The suit was decreed and the defendants appealed. While the appeal was pending in the Court below Act 11 of 1938 was passed by the Bihar Legislature. The effect of that section is that where an under raiyat has, for a period of 12 years, whether wholly or partly before the commencement of the new Act, continuously held land as an under-raiyat he is deemed to have acquired, on the expiration of that period, a right of occupancy.

u/s 48B, which was introduced by the same Act 11 of 1938, an under-raiyat who has acquired a right of occupancy u/s 48A is subject to the same, provisions with regard to eviction as an occupancy raiyat. The Court of appeal below, however, dismissed the appeal and the defendants have appealed to this Court.

It is contended on behalf of the defendants-appellants that the effect of Section 49A is that the appellants in this case had acquired a right of occupancy and are not liable to be evicted on a mere notice to quit. The point is covered by an authority by which.

I am bound, namely, the decision of a Division Bench in Agin Singh and Another Vs. Bhudeo Singh and Another, . It was there held that where the new Section 48A came into force during the pendency of an appeal in a suit for ejectment, the defendant must be deemed to have acquired occupancy rights in the disputed land if he continuously held the disputed land as an under-raiyat for more than 12 years before the institution of the suit.

Mr. Pal who appears for the respondents, however, relies on the decision in Freeman v. Evans (1922) 1 Ch. 36 where it was held, following the old case, Tayleur v. Wildin (1848) 3 Ex 303 that a notice to quit given to a tenant from year to year terminates the tenancy. On the basis of this decision it was contended that the under-raiyat''s tenancy in this case was terminated in 1926 when the notice to evict was served and that since that date he has not been holding it as an under-raiyat but as a trespasser.

This decision was not considered by the Division Bench in the case to which I have referred, but the facts of that case are not distinguishable from the facts of this ease, for in that case also there had been a notice to quit before the institution of the suit. In fact in that case the defendants had already been ejected under the decree of the first Court before the amending Act came into operation.

As I am bound by this decision the appeal must be allowed. The appellants are entitled to their costs. Leave to> appeal is granted.