Safiruddin vs Taraknath Roy Chowdhury and others

Ayyar, J.—The facts from which this second appeal by defendant 1 arises are briefly the following. The appellant is a purchaser of the property in suit, which consisted of two holdings, from defendant 3 by means of a kobala dated 23rd September 1928 and admittedly the vendor was recorded in the record of rights as "chandnadar". In 1936 and 1937 the landlord brought rent suits against the recorded chandnadar and obtained decrees and on 14th May 1937 purchased the disputed holdings in execution proceedings. On 4th December 1937, the landlord obtained symbolical possession through Court and on 22nd May 1939 the landlord executed a registered lease in respect of the property in favour of two persons Hanif and Sulaiman, who are related to defendant 2. As the lessees could not obtain possession in view of the transfer which had already taken place in favour of defendant 1 they brought C.S. No. 451 of 1939 for recovery of possession, impleading defendant 2 and the landlord as pro forma defendants. This suit was, however, dismissed in the lower Court and this finding was upheld by the District Judge. On 10th September 1941, the plaintiff landlord brought a suit for ejectment of the transferee defendant 1 on the ground that be had not taken the landlord''s permission before purchasing the land and that the holdings in question were not transferable without the landlord''s consent. Such a suit was necessitated by the fact that in the early suit brought by the lessees the finding was that the landlord and defendant 2 had both colluded against defendant 1 who had not taken the landlord''s permission before purchasing the disputed holdings. The learned Munsif found for defendant l, but this finding has been reversed in appeal by the learned Subordinate Judge who has held that the landlord was entitled to a decree for ejectment as the holdings in question were not transferable, according to local custom and usage, without the landlord''s consent, and such consent had not been obtained before defendant I took the kobala dated 23rd September 1928. Hence the second appeal.

As already observed, the appellant''s vendor was recorded as chandnadar in the survey record of rights. It is now settled that a chandnadar cannot transfer his holding without the landlord''s consent, this principle was pointed out in Chintamoni Rout and Another Vs. Sriram Chandra Kar, and reaffirmed in Mt. Haliman Bibi and Another Vs. Muhammad Tajamul Hussain and Others, . But Mr. Khan for the appellant has raised a new point and that is that by virtue of S. 3, Orissa Tenancy Amendment Act X [10] of 1946 a chandnadar can now claim immunity from ejectment in the same way as any other class of raiyat, and therefore the plaintiff landlord was not entitled to eject the transferee defendant 1 from the disputed holdings. Section 3 of the Amendment Act X [10] of 1946 has substituted the following for sub-s. (1) of S. 236, Orissa Tenancy Act of 1913 :

Notwithstanding anything in this Act, the incidents of tenancy of any tenant, including the holder of a service tenure, in respect of the homestead in which such tenant ordinarily resides, shall be regulated by the provisions of this Act applicable to land held by an occupancy raiyat, etc.

There was some argument as to whether a "Chandna" was identical with a homestead, but it is not relevant for the purposes of this appeal to enter into a discussion on this point. What is really important is that s. 3 of the Amendment Act X [10] of 1946 purports to amend only sub-s. (1) of S. 236 of the Act of 1913. Under S. 4, Orissa Tenancy Act, chandnadars are to be considered one class of tenants, but it is clear from other sections of the Act, like Ss. 74 and 75, that these chandnadars were always meant to be treated as a class by themselves. Even S. 236 of the 1913 Act, after laying down in sub-s. (l) that when a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage and subject to local custom or usage, by the provisions of this Act "applicable to land held by a raiyat", proceeded to lay down in sub-s. (2) a separate provision in respect of chandnadars, namely,

save as otherwise expressly provided in this Act the incidents of the tenancy of a chandnadar shall be regulated by local custom or usage and his rent shall be liable to re-assessment on each revision of a land revenue settlement.

The Amendment Act X [10] of 1946 has made no difference to this position of chandnadars, and the question whether a chandnadar is entitled to transfer his holding without the consent of the landlord would continue, therefore, to be regulated by local custom or usage. It is not for this Court to say whether in view of the amendments to sub-s. (1) of S. 236, Orissa Tenancy Act of 1913 now made by S. 3 of Act x [10] of 1946 the necessary legislation should be promoted for levelling down the distinction which still remains between a chandnadar and other classes of raiyats, as pointed out above, so as to give chandnadars the same occupancy rights as have now accrued to other types of raiyats. It is sufficient to ''observe that the distinction still remains and this Court has to administer the law as it finds it.

There is no other point arising in this appeal. The appeal should, for the reasons already stated, be dismissed. In the peculiar circumstances of this case, however, there will be no order as to costs. Leave to appeal under Letters Patent is refused.