Munshi Jawadul Huq vs Ram Das Shaha

This was a suit brought by the plaintiff to obtain khas possession to the extent of his share in a certain jote of five bighas of land in which the principal defendant had put up to sale and purchased the necessary right of the tenant, the principal defendant being the plaintiffs'' co-sharer in the Taluk in which the said jote is situated. The plaintiff based his suit upon the provisions of section 22, clause (2) of the Bengal Tenancy Act. The Munsiff held that although the clause in question, declares that in a case like the present the occupancy right transferred to the defendant has ceased to exist, there is nothing in the section to warrant the proposition that the holding itself is extinguished. He held, therefore, that the principal defendant who had purchased the jote was entitled to hold it as a tenant and that, the plaintiff was not entitled to obtain khas possession of his share. He accordingly dismissed the plaintiff''s suit. That decision was reversed by the Subordinate Judge, who has held that under the clause in question the principal defendant purchased nothing--the effect of that purchase being to extinguish the entire tenancy. He says:--"If the right, of occupancy fails, it is difficult to make out what other right remains; certainly the defendant cannot claim the status of an ordinary tenant against the will of the co-sharers, and if he is once allowed to hold on as a tenant, the result will be that he will continue to do so for ever until partition, for the other co-parceners will have no right to turn him out, and the provisions of section 22, clause (2) in that case will become nugatory."

The question which arises in this suit has recently been considered by me in several cases. No doubt the wording of the section in question is somewhat obscure and not altogether free from doubt, but having further considered the matter, I am still of opinion that the view taken by the Munsiff in this case is the right one. Section 22, clause (1) declares that when an occupancy holding is held immediately under a proprietor or permanent tenure holder and the entire interest of the landlord and the raiyat, meaning the occupancy raiyat, in the holding become united in the same person by transfer, succession or otherwise, the occupancy right shall cease to exist, but nothing in this clause is to affect prejudicially the rights of any third person. By this clause, therefore, as I understand it, when an occupancy holding is purchased by a full proprietor or permanent tenure holder, such proprietor would be, at liberty to deal with the land, as though the occupancy right has ceased to exist; in other words, he would be at liberty, to let the land again unfettered by any occupancy right, subject to the rights of any under-tenant, who may be on the land. If there are under-tenants, this condition would seem to show that the holding is not extinguished by the transfer. Clause (2) then goes on to say :--If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure holder, it shall cease to exist; but nothing in this sub-section shall prejudicially affect the rights of any third person."

Here again it is the occupancy right and not the holding, which the section says is extinguished by the transfer; and just as in the former case, the saving of the rights of under-tenants would seem to shew that the holding itself is not extinguished by the transfer; nor is it reasonable to suppose that the Legislature intended that the purchase of an occupancy holding by one co-sharer should enure to the benefit of the other co-sharers who had paid nothing for it. It is not unusual for one co-sharer to hold land as a raiyat under himself and the order co-sharers, and the saving of the rights of third parties would appear to extend to the right of the co-sharers to their share of the rent.

It seems so me, therefore, from these considerations that the effect of the clause in question is not to extinguish the holding altogether, but merely to divest it of the incidents attached to an occupancy holding; in other words, the purchaser will continue to hold it divested of those incidents. Whether or not the consequences will be, those stated by the Subordinate Judge, seems to me to be an immaterial consideration. The principal defendant in this case, having purchased the holding, is entitled, in my opinion, to the benefit of his purchase; and whatever rights the plaintiff may have against him, I do not think that section gives him the right to eject him from any portion of the land or to obtain direct possession of the land jointly with the defendant. It seems to me, therefore, that the plaintiff''s suit was properly dismissed and this appeal must me allowed. The decree of the lower Appellate Court will be reversed and that of the first Court restored, the suit being dismissed with costs in all Courts.

Macpherson, J.

In my opinion the decision of Mr. Justice Beverley is right. There is no law in this country which prevents one of several co-proprietors holding the status of a tenant under the other co-proprietors of land which appertains to the common estate. In the reported cases many instances will be found in which lands have been so held and in which the possession of the co-proprietor as a tenant has been recognised. Subsection (2) of section 22 of the present Tenancy Act does, however, provide that if an occupancy right is transferred to a person jointly interested in the land as proprietor, the occupancy right shall cease to exist. It is not said, and the sub-section cannot be understood to mean that the holding shall cease to exist, but that the occupancy right, which is an incident of the holding, will cease to exist, and there is nothing in the sub section inconsistent with the continuance of the holding divested of this right of occupancy which attached to it. The saving clause in the sub-section "that nothing in it shall prejudicially affect the right of any third person" indicates also that the holding would for some purpose, at all events, continue to exist. This view of the construction of the section was taken in an unreported case, Appeal from appellate decree No. 37, decided by Mr. Justice Norris and Mr. Justice Banerjee on the 30th March 1894; and the same view was also taken in the case reported in 21 Calcutta series, p. 869. Although the facts of these cases are not precisely similar to the facts of the present case, the view taken of the provisions of subsection (2,) section 22of the Bengal Tenancy Act was the same as that which I have expressed. I therefore think that the appeal must be dismissed with costs--ordinary costs for this hearing, and two gold mohurs for the hearing before the Bench by which this reference was made.