Anil K. Sen, J.:— This is an appeal under Clause 15 of the Letters Patent obtained at the instance of the plaintiff in a suit for declaration of title and recovery of possession. Such a suit was decreed concurrently by the two courts below but was dismissed by our learned brother Janah, J., on a second appeal preferred by the contesting defendants.
2. The plaintiff's case shortly was that two brothers, Santosh and Atul, held a rayati holding under the then landlord Sushital Kumar Ghosh who on July 12, 1954 obtained a rent decree against the said two brothers in Rent Suit No. 150 of 1954. That decree was put into execution in Rent Execution Case No. 165 of 1954 and the holding being put to auction sale was purchased by the plaintiff on April 21, 1955. The sale was confirmed on May 21, 1955 and as one Mahadev Ahir put forward a claim of korfa tenancy under the judgment-debtor raiyats, the plaintiff started a proceeding under Section 167 of the Bengal Tenancy Act and on January 28, 1958 annulled the said incumbrance. Since then the plaintiff was in possession of the suit land until March 1956 when the present defendants forcibly dispossessed him from the suit land appertaining to the said holding purchased by the plaintiff. Hence by filing the suit the plaintiff claims declaration of his title and recovery of possession.
3. In the written statement the defendants raised various defences including one to the effect that the suit is not maintainable. They further claimed that the interest of the korfa tenant, Mahadev Ahir, could not be annulled and that they on February 27, 1956, purchased the suit land from Mahadev and had been in possession all along by vitrue of their rights as such a purchaser.
4. The two Courts below held that by auction, purchase the plaintiff acquired title to the suit land and being entitled to annul the incumbrance, the korfa tenancy was duly annulled by service of notice under Section 167 of the Bengal Tenancy Act. The said Courts further held that the korfa tenancy not being transferable the defendants acquired no title to the suit land by their alleged purchase. The defendants were found to be trespassers and the suit was accordingly decreed.
5. On a second appeal to this Court, it was contended for the first time before our learned brother that on the enforcement of West Bengal Estates Acquisition Act the interest of the superior landlord Sushital Kumar Ghose vested in the State with effect from 1st Baisakh, 1362 B.S corresponding to April 14, 1955. It was further contended that because of such vesting there ceased to exist the relationship of landlord and the tenant between the decree-holder Sushital Kumar Ghosh and the said two brothers, the judgment-debtors, on the date the raiyati holding was put to auction sale and hence such a sale could not have the effect of a rent sale under the provisions of the Bengal Tenancy Act entitling the purchaser to annul the encumbrance. Further it was pointed out that Sec. 5B of the West Bengal Estates Acquisition Act rendered such a sale to be void and of no effect. Hence the plaintiff could not have annulled the korfa tenancy or claimed recovery of possession by evicting the defendants who acquired korfa tenancy by purchase. This contention being accepted by our learned brother he held as follows:—
“I have already held that the sale which took place on April 21, 1955 was not a rent sale. The plaintiff therefore purchased only the right, title and interest of the judgment-debtors and he had no right to annul the incumbrance under Section 167 of the Bengal Tenancy Act, with the result the korfa tenancy claimed by Mahadev Ahir under the judgment-debtors continued.”
In that view, our learned brother allowed the appeal and dismissed the suit. Feeling aggrieved the plaintiff has preferred the present appeal under Cl. 15 of the Letters Patent.
6. Having heard the learned Advocates it appears to us that the view taken by our learned brother to the effect that the sale held on April 21, 1955 had not the effect of a rent sale but that of only a money sale is unassailable and that appears to be well-settled by the previous decisions of this Court including the decisions of the Special Bench. Mr. Mookerjee, appearing on behalf of the appellant, has not, therefore, disputed the correctness of the aforesaid conclusion of our learned brother. According to Mr. Mookerjee, however, the korfa tenancy being not transferable, transfer thereof by Mahadev in favour of the defendants on April 10, 1956, constituted surrender of such a tenancy and the defendants having acquired no title by such purchase were liable to be evicted even upon the plaintiff's title acquired under the sale which had the effect of a money sale. This aspect, according to Mr. Mookerjee, was not taken into consecration by our learned brother when he straightway dismissed the suit without considering the effect of the transfer of the korfa tenancy by Mahadev in favour of the present defendants. There may be some substance in this contention of Mr. Mookerjee, but there is an un-surmountable obstacle for the plaintiff in supporting the claim put forward in the present suit. It is so even upon his own pleading.
7. This leads us to consider a point again raised for the first time before us by Mr. Saktinath Mookerjee, who is appearing for the contesting defendants-respondents in this appeal. According to Mr. Saktinath Mookerjee, upon the plaint case as also upon the defence taken the plaintiff was not in possession of the suit land on April 15, 1955 when the raiyati interest purchased by the plaintiff vested in the State on enforcement of Chapter VI of the West Bengal Premises Tenancy Act. Since the entire estate and the rights therein vested except those which could be retained under the provisions of Section 6 of the West Bengal Estates Acquisition Act the plaintiff's right, title and interest in the suit land also vested because the suit land not being in his khas possession he was not entitled to retain. Accordingly, it is contended by Mr. Saktinath Mookerjee that with effect from April 15, 1955 the plaintiff lost his title that might have been acquired by the purchase made in the money execution and as such he was not entitled to claim reliefs sought for irrespective of whether the defendants acquired any title to the suit land by virtue of the purchase from the korfa tenant. Reliance is placed by Mr. Saktinath Mookerjee on the decision of the Supreme Court in the case of Gurucharan Singh v. Kamla Singh, AIR 1977 SC 5 and a decision of this Court in the case of Ratindra Nath Pal v. Subodh Gopal Bose. ILR (1969) 2 Cal 315. Mr. Mookerjee, appearing on behalf of the appellant, has, however, contended that in order to be entitled to retain it is not necessary that the raiyat intermediary must be in actual khas possession on the date of vesting. The term “in khas possession” in the material clause of section 6, according to Mr. Mookerjee, qualifies the word ‘retain’ that is what he can retain in khas. If on the date of vesting the raiyat intermediary has a right to get posssession he can still exercise such right and recover possession for the purpose of retaining the same for his own khas possession and the mere fact that a trespasser has come to possess it can be no reason for denying him the said right. No doubt an earlier decision of this Court lends some support to such a contention. Reference may be made to a single Bench decision of this Court in the case of Tara Prosad Mukherjee v. Ganesh Chandra Mondal (1966) 70 Cal. W.N 652. We are also conscious of the fact that this Court in two earlier Bench decisions upheld the right of an intermediary to enforce his right for recovery of khas possession even after the vesting of his estate. These are the decisions in the cases of Lalji Agarwalla Jain… v. Jhingu Goala…., (1957) 61 Cal. W.N 607 and M.L Dalmiya and Company v. Chinta Haran Mukherjee, (1958) 62 Cal. W.N 505. But in view of the later decision of the Supreme Court referred to and relied on by Mr. Mookerjee, namely in the case of Gurucharan Singh v. Kamla Singh, AIR 1977 SC 5 these earlier decisions of this court must be deemed to have been overruled by necessary implication. The Supreme Court laid down very clearly that an intermediary who is not in khas possession cannot enforce his right to possess even against a trespasser after the vesting of his estate. Therefore, it must be held in the present case that though the defendants acquired no title by purchase from the korfa tenant as the korfa tenancy was not transferable in law and as such, was (were?) in the position of a trespasser in relation to the plaintiff who purchased in auction the right, title and interest of the raiyat landlord, yet the plaintiff lost his right to maintain an action for recovery of possession from such a purchaser after the vesting of his estate on enforcement of Chapter VI of the West Bengal Estates Acquisition Act. The later Bench decision of this Court in the case of Ratindra Nath Pal v. Subodh Gapal Bose, ILR (1969) 2 Cal 315 has made this position clear.
8. In the result, we must uphold the ultimate decision of our learned brother Janah, J., for reasons given. This appeal, therefore, fails and is dismissed.
9. There will be no order as to costs.
S.N Sanyal, J.:— I agree.
Appeal dismissed.