Surendranath Naik vs Ratha Biswal and Others

R.N. Misra, J.—On 12-4-1956, Plaintiff instituted Rent Suit No. 793 of 1956-57 for recovery of the money value of produce rent amounting to Rs. 121.50 paise in respect of the years 1362 and 1363 V.S. corresponding to 1955 and 1956. The Plaintiff claimed that Defendants were sikimi tenants in respect of 73 decimals in Khata No. 87 of tauzi 2174. One Kailash Samantaray and some others were recorded occupancy tenants of the disputed land and Defendants 1 and.:: were sikimi tenants under Kailash. The occupancy tenants having fallen into arrears, the proprietor sued for rent, obtained a rent decree and himself purchased the holding in a rent sale. After getting into khas possession of the property, the proprietor settled the land with the Plaintiff on 12-10-1942. The Plaintiff, therefore, became occupancy tenant and the Defendants as sikimi tenants continued to be liable for rent. The Defendants failed to pay the rent of the two years in question although they raised double crops of paddy and mung during the years.

The defence raised in the suit was that the Plaintiff himself purchased 26 decimals in the name of Sitamoni, his brother''s widow, and was in khas possession thereof. Two crops as alleged had not been raised during the two years. On the other hand, the entire paddy crop was washed away in the year 1956 and in respect of 1955 rajbhag had been duly paid. Therefore, it was pleaded that the suit was without basis.'' Relationship of landlord and tenant was also denied.

On 7-7-1961, the Rent Suit was dismissed. On Plaintiff''s appeal, the lower appellate Court in Rent Appeal No. 4 of 1961 remanded the matter on 2-7-1964. After remand, further evidence was received and the Rent Suit Officer accepted the defence plea that in 1956, the crop had been washed away. He decreed the suit in respect of 1955 by his order dated 24-9-1970.

Defendants carried an appeal to the lower appellate Court u/s 204(3) of the Orissa Tenancy Act. The only question which was canvassed before the lower appellate Court was that the Defendants had no liability to pay the refit claimed in view of the fact that their status had been elevated to that of occupancy tenant''s when the proprietor purchased the holding in a rent sale. Reliance was placed on Section 26(2) of the Orissa Tenancy Act for the stand. The learned Appellate Judge upheld the contention and reversed the decree. This second appeal has been filed under the proviso to Section 204(3) of the Act.

Mr. Swain for the Appellant contends that the learned Appellate Judge has gone wrong in law in holding that the Plaintiff''s right to recover rent did not exist. The lower appellate Court relied upon a decision of a learned Single Judge of the Calcutta High Court in the case of Ram Charan Sutradhar and Another Vs. Radha Charan Das and Others, for his decision. The correctness of this decision is also assailed by Mr. Swain before me.

The effect of acquisition of occupancy right by landlord has been indicated in Section 26 of the Orissa Tenancy Act. Sub-section (2) provides:

If the occupancy-right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, such person shall have no right to hold the land as a raiyat, but shall hold it as a proprietor or permanent tenure-holder, as the case may be, and shall pay to his co-sharers a fair and equitable sum for the use and occupation of the same.

This provision corresponds to Section 22(2) of the Bengal Tenancy Act after amendment in 1907. The decision of the Calcutta High Court referred to above has indicated:

The amendment makes it absolutely clear that not only the occupancy right shall cease to exist but that the raiyati itself will disappear. This view is supported by a decision of this Court in the case of Hochanuddi v. Abdul Hakim Mridha (1925) 90 I.C. 816. This case also lays down that if the raiyati ceases to exist, then the tenants who held as under raiyats before the auction-purchase cannot be said to be holding under raiyats and consequently they cannot he said as under-raiyats as defined in the Bengal Tenancy Act. In my judgment the lower appellate Court is right in holding that the Defendants are not under-raiyats and consequently are not liable to be evicted....

There is no dispute that Section 22(2) of the Bengal Tenancy Act substantially corresponds to the provisions of Section 26(2) of the Orissa Tenancy Act. That has also been indicated by a Bench of this Court in the case of Nilmoni Hota v. Govinda Chandra Das ILR 1950 Cutt 516. The conclusion reached by the learned Single Judge in the Calcutta decision does not appear to be correct. Examining this question at some length in the case of Maimunnissa Bibi v. Nilamani Mohapatra 36 (1970) C.L.T. 436, I came to hold:

The point which arises in the present case is to decide as to what is the effect on the occupancy holding by purchase of it by a co-sharer-proprietor of the touzi. According to Mr. Dasgupta, there is a merger and the tenancy interest is lost. Therefore, when the revenue sale took place in 1938, Defendant No. 2 acquired the holding also. Mr. Mohapatra, learned Counsel for the Respondents, however, contends that the holding did not pass, because the holding survived. What was lost was only the occupancy right and the two interests, that is, one of the proprietor and the other of the holder of ''once upon a time'' the occupancy holding are separate, and with the -sale of the proprietary interest the interest in the other holding does not pass. HIS contention, therefore, is that the sale in 1938 did not convey to Defendant No. 2, what was once the occupancy holding....

After referring to a Full Bench decision of the Calcutta High Court of five Judges in the case of Ram Mohan Pal v. Sheikh Kachu 1 Cal. L. 1. page 1, the following conclusion was indicated:

It can be taken on an analysis of the aforesaid Fun Bench decision, that the majority view supported such a conclusion, namely, that the holding continued and a tenancy right, short of occupancy interest subsisted in the holder of such holding. I have examined many other decisions that were cited at the Bar, but there is no positive indication in any other decision as to what would be the interest in the ''once upon a time'' occupancy holding after the merger. The Division Bench decision of this Court referred to above did not decide one way or the other after concluding that the holding did not merge nor did it get extinguished. In the circumstances, I would accept the principle indicated in the aforesaid Full Bench decision of the Calcutta High Court and hold that the interest of an under-rayati subsisted in the Plaintiff and it can be concluded that an under-rayati interest continued in him....

This conclusion negatives the stand raised by the Defendants. The occupancy holding continued to exist though the occupancy right had merged. Plaintiff''s claim that in 1942, the proprietor put him into possession of the occupancy holding which was hitherto existing has not been negatived by the lower appellate Court. If the holding continued and there was a settlement, the holder of the occupancy holding would have the right of occupancy. The reasoning which was used in the Calcutta decision to support the claim of elevation of the status of the hitherto under-raiyat was that with the abolition of the occupancy holding, the under-raiyati could not exist because under-raiyat has to exist under a raiyat. Once it is found that the occupancy holding continued and was not affected by the rule of merger, it would follow that there was no legal impediment for the under-raiyati to continue under the existing occupancy holding. On the basis of this logic the only conclusion which can be reached is that the Defendants continued in their old status and remained liable for the rent as claimed by the Plaintiff. The learned Appellate Judge went wrong in law in accepting the defence claim of change of status.

I have already indicated that the Plaintiff''s claim for the second year was rejected by the Rent Suit Officer and in the absence of any further challenge by the Plaintiff has become final. So far as the rent for the first year is concerned, the defence plea was one of payment. After the suit was remanded by the lower appellate Court, some evidence was led and it was the Plaintiff''s witnesses who took the stand that the claim for rent for the year was settled and compromised. The learned Appellate Judge has referred to these facts in paragraph 11 of his judgment. The legal question having been canvassed in appeal, this aspect of the matter was lost sight of. As I find, on the common stand of parties, the plea of payment for the first year appears to be appropriate for acceptance. I would accordingly hold that the rent for the first year had actually been paid as claimed by the Defendants.

On the aforesaid findings, it would follow that while Plaintiffs was entitled to sue for recovery of rent, he had no cause of action for the rent suit. Accordingly dismissal of Plaintiff suit for recovery of rent is justified though the ground upon which such dismissal was recorded by the lower appellate Court has been reversed. I direct both parties to bear their own costs throughout.