Mahammad Ibrahim vs Bachchamai Nessa

Lahiri, J.—These two appeals are by the Plaintiff in two mits for ejectment on service of notice to quit u/s 106 of the Transfer of Property Act. It has been found by the courts below that one Abdul Rahim and others held a sub-tenancy under the Plaintiff and the Defendants were sub-lessees under Abdul Rahim and others. On September 22, 1935, the Plaintiff purchased the interest of Abdul Rahim and others and served a notice to quit upon the Defendants and thereafter instituted the present suits for ejectment.

The Defendants resisted the claim of the Plaintiff on the ground that their tenancy was governed by the Bengal Tenancy Act and there was a further plea in Second Appeal No. 97 of 1940 arising out of Title Suit No. 16 of 1938 to the effect that the Plaintiff had not purchased the interest of Samirannessa, who was the mother of Abdul Rahim and others, and as she had not been impleaded in the suit, the suit was bad for defect of parties.

Both the courts below have dismissed the suit upon the view that as the Plaintiff is an occupancy rdiyat, the incidents of the sub-tenancy must be governed by the incidents of the head-lease and the Defendants are, therefore, protected from eviction under the Bengal Tenancy Act. In Title Suit No. 16 of 1938 giving rise to Second Appeal No. 97 of 1940 the suit, was dismissed on a further ground that the suit was bad for nonjoinder of Samirannessa. Against the decrees of the courts below the Plaintiff filed these second appeals as early as December 18, 1939, but the hearing of these appeals was stayed by an order of the Court under the provisions of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 (Bengal Act IX of 1940), the life of which was extended from year to year by subsequent legislative enactments. After the coming into operation of the West Bengal Non-Agricultural Tenancy Act of 1949 (West Bengal Act XX of 1949), which came into force on May 5, 1949, the order of stay became inoperative and the appeals were set down for hearing. If the parties had taken steps for expeditious hearing of the appeals after the passing of West Bengal Act XX of 1949, the appeals would have been disposed of much earlier but they did not take any step and the appeals have been taken up for hearing on office reports.

However that may be, the only question that requires consideration in these two appeals is whether the tenancy of the Defendants is to be governed by the provisions of the Bengal Tenancy Act or the Transfer of Property Act. It is not disputed that the Plaintiff is an occupancy rdiyat under the Bengal Tenancy Act but it is claimed that his sub-lessels are governed by the Transfer of Property Act since their lease was not taken for agricultural or horticultural purposes. Ever since the decision in 1904 in the case of Baburam Roy v. Mahendra Nath Samanta (1904) 8 C.W.N. 454. it has been uniformly held in a series, of decisions that the incidents of the head-lease would govern the incidents of the sub-lease created by the rdiyat. In the case of Arun Kumar Sinha v. Durga Claran Basu (1941) 45 C.W.N. 805 the decision in Baburam Roy''s case and all cases following that case were subjected to a good deal of criticism and B.K. Mukherjea, J., in delivering the judgment of the Division Bench, recognised the force of some of the criticisms but in the end his Lordship refused to make any departure from the view which had been accepted for a period of nearly forty years. More than ten years have elapsed since the decision in Arun Kumar Sinha''s case and" we may now unhesitatingly say that the decision has been accepted as correct for half a century. All, the cases on the point were exhaustively reviewed by B.K. Mukherjee, J., in Arun Kumar Sinha''s case and as a result of the review his Lordship came to the following conclusion as to the meaning of the word "under-rdiyat" as denned by Section 4(5) of the Bengal Tenancy Act:

It cannot be denied, however, that the wording of Section 4(3) of the Bengal Tenancy Act is very wide and when the word has been interpreted in one way for a period of fourty years without any dissension whatever, we think that we should not'' be justified in upsetting the long series of decisions. It is significant to note that considerable changes have been introduced in the Bengal Tenancy Act in recent, years but the Legislature which must be presumed to be aware of the law as laid down in the abovementioned decisions did not consider it necessary to make any changes in this respect.

It was further pointed out in that case that according to the definition of the word "rdiyat" as given in Section 5(2) of the Bengal Tenancy Act it is necessary that he should be a person who has acquired a right to hold the land for the purpose of cultivating it by himself, or by members of his family or by servants or labourers. In the case of an under-rdiyat, however, no such condition is necessary and the word under-rdiyat has been defined in Section 4(3) of the Bengal Tenancy Act merely as a tenant holding immediately or mediately under a rdiyat. In order to be an under-rdiyat within the meaning of Section 4(3), therefore, it is not necessary that the lease should be for agricultural purposes. This is the result of the decision in Arun Kumar Sinha''s case. Mr. Bakshi appearing for the Appellant argued that there is a conflict of decisions on this point and we were somewhat surprised to hear from him that the same learned Judge who decided Arun Kumar Sinha''s case gave a contrary decision sitting singly only one year ago in the case of Amiyabala Devi v. Gopendra Krishna Pal (1940) 44 C.W.N. 890. On examining the facts of the latter case, however, we find that it has no bearing whatsoever upon the point that was decided in Arun Kumar''s case. In Amiyabala''s case a particular holding which was governed by the Bengal Tenancy Act was split up into small tenancies by separate engagements with the landlord and Mukherjea, J., held that if in places of the original holding number of separate tenancies had come into being on the basis of fresh engagements with the landlord, the nature of the land and the purposes for which new tenancies were created would determine their character and incidents. There can be no doubt that this is the correct position in law. If one has to determine the nature of a tenancy created by the landlord, the purpose for which the lease was taken has to be enquired into or the purpose of ascertaining whether the lease was governed by the Bengal Tenancy Act or by the Transfer of Property Act. in the case of Sm. Amiyabala Devi v. Gopendra Krishna Pal (1940) 44 C.W.N. 890, referred to above, the learned Judge had nothing to do with the meaning of the word "under-rdiyat'''' as defined in the Bengal Tenancy Act or with the question whether the under-rdiyati lease should also be for agricultural purposes in order to come within the definition given in the Bengal Tenancy Act.

Mr. Bakshi further argued that a contrary view was also taken in the case of Gayanath Ojha v. Anukul Chandra Ojha (1920) 32 C.L.J. 6. In that case, the Plaintiff instituted a suit for ejecting the Defendant on the footing that the Plaintiff was a rdiyat and the Defendant was an under-rdiyat. It was held by the courts below that the Plaintiff was not a rdiyat but a tenure-holder and on this finding the Plaintiff''s suit was dismissed by the lower appellate court as well as by Panton, J., in second appeal. This decision was set aside by Sir Ashutosh Mookerjee, A.C.J., and Fletcher, J., upon the view that the question had not been approached from the proper point of view in any of the courts below. Their Lordships took the view that if the Plaintiff was a tenure-holder the Defendant might be either a rdiyat or a tenant governed by the provisions of the Transfer of Property Act and even if he was a tenant under the Transfer of Property Act he might be a yearly tenant or a monthly tenant and it was necessary to find whether the Defendant was a yearly tenant or a monthly tenant, and for the purpose of a fuller enquiry on this point the suit was remanded. It is to be noticed that in the case of Rampado Sirkar v. Atore Dome (1923) 40 C.L.J. 307. Sir Ashutosh Mookerjee and Rankin, JJ. as he then was, followed Baburam Roy''s case and observed that the question whether a case is to be governed by the Bengal Tenancy Act or by the Transfer of Property Act depends on the nature of the original tenancy and not upon the character of the parcels included in the sub-tenancy and it was not necessary to Investigate the actual origin of the tenancy. It is sufficient if it is established that at the time of the sub-lease the holding but of which the sub-tenancy was carved out was an agricultural holding.

Mr. Bakshi also invited our attention to the case of Mansh Alauddin Ahammed Choudhury v. Tamizuddin Ahammed (1937) 41 C.W.N. 1001. where Henderson and Biswas, JJ., had to consider the question whether an ejara lease in respect of land partly agricultural and partly non-agricultural was to be governed by the Bengal Tenancy Act or by the Transfer of Property Act and in considering this question their Lordships entered upon an enquiry as to the purpose for which the tenancy was created. This decision also, in our opinion, has no bearing upon the point which arises for consideration in these appeals. In order to determine whether the Bengal Tenancy Act or the Transfer of Property Act will apply to a lease there can be no doubt that the purpose of the lease has to be ascertained but the question that requires consideration in the appeals before us is whether that enquiry is also necessary in the case of an under-raiyati lease. Nothing was said in Munshi, Alaudddn''s case on this last point. Similar observations also apply to the other case which was cited before us by Mr. Bakshi, viz., the case of Sailendra Kumar Burman v. A. CoCo, Prior of Bandel Church (1940) 44 C.W.N. 582. where Akram, J''., sitting singly, had to consider whether a lease granted by a landlord for the purpose of gathering and enjoying fruits from trees standing on the land was to be governed by the Bengal Tenancy Act or by the Transfer of Property Act. This decision also does not lay down any proposition which is contrary to the proposition enunciated in Baburam Roy''s case (1904) 8 C.W.N. 454 or in the case of Arun Kumar Sinha (1941) 45 C.W.N. 805. We are, therefore, unable to accept Mr. Bakshi''s contention that there is any conflict of decision on the question which was decided in Baburam Roy''s case or in Arun Kumar Sinha''s case. We respectfully agree with the views expressed by Mukherjea, J., in Arun Kumar Sinha''s case that having regard to the fact, that the decision in Badiuram Roy''s case has been accepted as correct for nearly half a century we shall not be justified in departing from the interpretation of the word "under-rdiyat" as given in that case. The point urged by Mr. Bakshi accordingly fails.

Having regard to the decision on this question, it is not necessary to go into the other question as to whether Title Suit No. 16 of 1938 giving rise to Second Appeal No. 97 of 1940 is also bad for non-joinder of Samirannessa who was held to be a necessary party to the suit. We, therefore, leave this question open.

These appeals accordingly fail and must be dismissed. second Appeal No. 97 of 1940 is dismissed with costs but as here is no appearaace for the Respondents in Second Appeal No. 96 of 1940, there will be no order for costs in that appeal.

Guha, J.

I agree.