The Judgment of the Court was as follows:—
Suhrawardy, J.:— These are appeals by the Defendants Nos. 4 to 7 against the decree of the Subordinate Judge of Tipperah, dated the 11th May 1926. The Defendants Nos. 1 to 3 had a jote under a sikimi taluk in which the Respondents, the Appellants and some others are jointly interested. In execution of a money decree the Plaintiffs purchased the holding in 1912. But it appears that they did not get possession of the same. In 1914 the Appellants obtained a money decree against the same tenants and sold the holding and obtained possession thereof. Thereupon the Plaintiffs brought these two suits for recovery of possession of the lands included in the holding from the Defendants. The defence was that the Plaintiffs had no right in the sikimi and that the Plaintiffs being part owners of the sikmi were not legally entitled to evict the Defendants who were also proprietors of the same taluk and were in possession by virtue of their auction-purchase. It was also pleaded that the tenancy being non-transferable the Plaintiffs had acquired no right to it. Both the Courts below made a decree in favour of the Plaintiffs minus the Defendants' share which is 2 annas 3 gandas.
Defendants Nos. 4 to 7 have appealed and it is argued on their behalf that the view of the law taken by the Courts below is wrong. It is contended that the tenancy being a non-transferable occupancy holding, sec. 22 of the Bengal Tenancy Act does not apply and that the Plaintiffs by virtue of their purchase have acquired no right. In support of this contention reliance has been placed upon Girisk Chandra Chowdhury v. Kedar Chandra Roy (1) and Lakhi Kanta Das Mahapatra v. Balbhadra Prosad Das (2). These cases were, however, decided on the law as it stood before the amendment of the Bengal Tenancy Act in 1908. The law as is now laid down by the authorities on this point will be considered later. Though the Defendants in their written statement said that the tenancy was a non-transferable occupancy holding, the trial Court proceeded upon the assumption that sec. 22 applied to the case. This was due to the fact that in the record-of-rights on which the Defendants base their claim, the Defendants were recorded as being in possession as co-sharer maliks under sec. 22 of the Bengal Tenancy Act. In this state of things the case proceeded under sec. 22 and the judgment of the Court below does not give any indication whatsoever that the question of transferability or non-transferability of the holding was ever mooted. The case in the lower Appellate Court seems to have been argued on the basis of sec. 22 and the decision arrived at by that Court is also passed with reference to that section. I will, therefore, first of all, examine the correctness of the decision of the Court below with reference to sec. 22 of the Bengal Tenancy Act. Cl. (2) as amended by Act I of 1908, East Bengal and Assam is: “If the occupancy right in land is transferred to a person jointly interested in the and as proprietor or permanent tenure-holder, such person shall have no right to hold the land as a raiyat, but shall hold it as 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.” It means in simpler language that if a co-sharer landlord purchases an occupancy holding which should be a transferable occupancy holding, he is entitled to hold it not as a raiyat but as a tenure-holder in the right which he has in the tenure subject to payment of a fair and equitable rent to the other co-sharers. The object of the amendment has been explained in Purna Chandra Roy v. Mathura Mohon Saha , where the law is thus stated: “The effect of the amended section is that the occupancy holding disappears, and the purchaser holds the land as a joint proprietor or joint tenure-holder, as the case may be. To put the matter briefly, the purchaser enjoys the land in his character of proprietor or tenure-holder and not as a raiyat. But, as upon the disappearance of the tenant's right, all the holders of the superior interest would prima facie be entitled to possession, that one amongst them who is allowed to keep exclusive possession of the land is made to pay his co-sharers a fair and equitable sum for such use and occupation.” By the Plaintiffs' purchase in 1912 they acquired the holding divested of its character as an occupancy holding and also obtained under sec. 22 the right to possess the land subject to payment of a fair and equitable amount to their co-sharers. By their purchase of the same holding in 1914 the Defendants did not purchase anything because whatever interest the tenants had in the land had already been sold to the Plaintiffs in 1912. The Defendants must, therefore, be taken to be trespassers and this position has not been seriously denied. Under sec. 22 the Plaintiffs had the right to the recovery of possession of the entire land from the Defendants. But the Courts below have given them a decree in respect of the land less the Defendants' share and they were satisfied with it.
Now, assuming that the holding was a non-transferable occupancy holding; according to the decision of the Full Bench case of Dayamoyee v. Amanda Mohan Roy Chowdhury , the Plaintiffs by their purchase acquired a good title to the land against every person except the landlord. The Full Bench decision does not particularly deal with the case of a co-sharer landlord, but it cannot be disputed that by “landlord” is meant “the entire body of landlords” or “the 16 annas landlord.” A co-sharer landlord can only object to the sale of the holding to the extent of his own share. By the sale of a non-transferable occupancy holding a raiyat is not entitled to question the legality of the sale; the only person who can challenge its validity is the landlord. It is hardly to be presumed that a co-sharer landlord is entitled to object to the sale of the entire holding, for it is possible the other co-sharers have acquiesced in the sale or accepted the transfer. It has been held that where a co-sharer landlord purchases a holding, another co-sharer has a right to recover possession of the property to the extent of his own share. Dilbar Sardar v. Hosein Ali Bepari and Kanchan Mandar v. Kamala Prosad Chowdhury . In the last case the law is thus stated: “In the event of a sale of a non-transferable occupancy holding, the purchaser can be evicted by any of the co-sharer landlords to the extent of his own share, and if possession of the entire holding has been acquired by some of the co-sharers the other co-sharers are entitled to joint possession thereof.” The logical conclusion from this view is that when a co-sharer landlord takes an unlawful possession of a holding, another co-sharer purchaser of the holding is entitled to recover possession from him except to the extent of the share of the co-sharer. Looking at the question as it has been raised before us, it does not seem to have been discussed in any of the reported cases. From all points of view the decree of the lower Appellate Court seems to be unassailable.
A good deal of argument was founded on same observations of their Lordships of the Judicial Committee in the case of Midnapur Zemindary Company v. Noresh Narayan Roy . At page 29th their Lordships say “No co-sharer can, as against his co-shorers obtain any jote right, a right of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy of the lands in them.” This is a reproduction of cls. (2) and (3) of sec. 22. Later on their Lordships observe: “Even if the Midnapur Company purchased any jote rights in lands held in common by the co-sharers, such a purchase would in law be held to have been a purchase for the benefit of all the co-sharers, and the jote rights so purchased would by the purchase be extinguished.” A great deal of stress has been laid upon the word “benefit” in the passage quoted. What their Lordships meant is that if a co-sharer purchases land held in common by him and his co-sharers, he would hold by virtue of such purchase the land to the benefit of the other co-sharers, namely, lie would be liable to pay fair and equitable rent to them; but the jote right so purchased would be extinguished. Even if the word “benefit” in their Lordships' judgment means “on behalf of” or “subject to the right of the joint possession by the other co-sharer landlord,” the Plaintiffs' suit for recovery of possession against the Defendants would not be affected by what their Lordships said. The Defendants being trespassers and having no right to remain on the land and the Plaintiffs claiming recovery of possession of the land under a semblance of title which gives them the right to present possession Plaintiffs are entitled to succeed. If in future other co-sharers come in and claim possession of their shares from the Plaintiffs and if it is proved that the land is a non-transferable occupancy holding, they will be under the law entitled to obtain joint possession with the Plaintiffs to the extent of their shares.
The result is that the appeals fail and are dismissed with costs.
Garlick, J.:— I agree. The Plaintiffs purchased the holding, and the Defendants, as co-sharers of the taluk, can only object to the Plaintiffs' possession of the land of the holding so far as their own share of the taluk is concerned.
P.C