1. In the Record of Rights the land in suit has been entered as the holding of one Munshi, and the first party defendants have been entered as under-raiyats. Plaintiffs are purchaser in execution of a decree against Munshi and sue, after service of notice, for ejecment under Section 49 of the Ben. Ten. Act. The lower appellate Court has held that the first party defendants are not under, raiyats, but occupancy raiyats, having been in possession of the land as such since 1888 when they obtained a settlement from Sanath Chowdhury, the proprietor, by a registered kabuliyat. The present second appeal has been made by the plaintiffs because their suit has been dismissed.
2. The learned Judge's finding that the defendants have been in possession as raiyats under the landlord rebuts the presumption of the correctness of the Record of Rights and, therefore, the onus is shifted upon the plaintiffs to show that they have a title superior to that of the defendants. Now, the plaintiffs rely upon the title of Munshi and alleges that Munshi was a co-sharer landlord and that he purchased the occupancy right of the original tenant Phatka Chamar. They contend that although by Munshi's purchase the occupancy right was merged, the non-occupancy right continued to subsist under S. 22(2) of Act 8 of 1885, which was the law applicable to the present case, and that, although under the present law, which amended Act 8 of 1885 in 1908, the learned District Judge's decision would be right, under the law as it stood at the time of Munshi's alleged purchase the learned Judge's decision is wrong. I think it is clear that the Tenancy Act as it stood before 1908 must be applied to the present case. But before the plaintiffs can succeed they must show that Munshi's purchase was previous to 1888, in view of the finding of the learned District Judge that the defendants have been tenants paying rent to Sanath Chowdhury since that date. The learned District Judge does not record any finding as to the date of Munshi's purchase. He does not even find whether the purchase was actually made, and it would seem that, as the purchase was admitted to have been made by a registered kabala, oral evidence of the purchase is not admissible. The kabala itself has not been produced and no reason has been assigned for the admission of secondary evidence.
3. Upon the findings, I must take it that the fact of the purchase has not been proved; much less has it been proved that the purchase, if made at all, was in Munshi's capacity as co-sharer. Clearly, if the purchase was made on behalf of all the landlords, the whole tenancy merged even under the Act as it stood, before 1908. The learned Vakil for the appellants relies upon S. 22(1) of Act 8 of 1885 and contends that upon the language of that section, the entire body of the landlords were competent to keep alive the non-occupancy right in Phatka's holding. He relies upon the case of Miajan v. Minnat Ali(1). But the decision in that case did not rest upon the interpretation which the learned Vakil now desires to give to S. 22(1). Although the Judges there expressed an opinion that the non-occupancy right would continue to subsist, they held that it was not necessary to decide that point, because the plaintiff in the suit before them might be considered to have derived his title from the landlord by the creation of a new tenancy by fresh, settlement. They thought that the landlord was competent either to dispose of the old holding under its old name or to create a new holding. On the other hand a later case, namely, Ram Saran v. Mahomed Latif(2), is clear authority for the proposition that where a landlord purchases an occupancy holding and gives a lease in respect of it to another tenant, he brings the whole tenancy to a termination and cannot be heard to say that the non-occupancy right still subsists.
4. The learned Vakil for the appellants has not be able to show me any authority in support of his present proposition. All the cases which he can cite relate only to the purchase of an occupancy holding by a co-sharer landlord, in respect of which it is settled law that under the old Tenancy Act the non-occupancy right would be kept alive by the co-sharer landlord purchaser. In the present case the learned vakil admits that he is not able to prove that Munshi's purchase was on behalf of himself only.
5. Again, if Munshi's purchase was after 1888 then admittedly the plaintiffs cannot possibly succeed. The result, therefore, is that although the learned District Judge's view of the law applicable to this case is incorrect the decree made by him must be affirmed. The plaintiffs have not been able to show that they had under the law as it stood before 1908 a title better than that of the defendants. The result is that the appeal is dismissed with costs.
V.S/R.K
6. Appeal dismissed.