Abhoy Charan Modak v. Ram Sundar Shaha

The Judgment of the Court was as follows.—

In this case the Plaintiff who is the Appellant brought a suit to recover khas possession of the lands of Schedules Kha and Ga to the plaint on the allegation that the said lands were khas khamar lands appertaining to 7 pice share of the patni which originally belonged to Defendant No. 1's father Ram Nath Shah and which was purchased subsequently by the Plaintiff in an auction-sale in execution of a mortgage decree. The Plaintiff's case is that the Defendant No. 1's father who was a patnidar to the extent of seven pice share in the patni had purchased certain holdings under the patni and was in possession of them. The patni right of Defendant No. 1's father having been sold, Defendant had no right to retain possession of the khas land which passed with the patni to the Plaintiff. The trial Court dismissed the Plaintiff's suit in respect of the Schedule Kha land but decreed it in respect of Ga. The lower Appellate Court on appeal by the Plaintiff confirmed the decree of the trial Court dismissing the suit in respect of the Schedule Kha lands.

The point that arises in this case is the effect of the purchase by the Defendant No. 1's father of the raiyati holdings under the patni. These purchases were made in 1883 and 1896 prior to the amendment of sec. 22, Bengal Tenancy Act by the East Bengal and Assam Act of 1908. If by his purchase the Defendant No. 1's father under the old sec. 22, cl. (2) lost only the occupancy right but the holdings were not extinguished, the Plaintiff is not entitled to recover possession of them unless the Amending Act of 1908 had retrospective effect which it has been held it has not. If on the other hand under the law the Defendant No. 1's father's purchase destroyed not only the occupancy right in the holdings but also the holdings themselves the Plaintiff is entitled to succeed.

If the question raised in the case were res Integra we would have given careful consideration to the submissions made on behalf of the Appellant. But it seems to be covered by a Full Bench decision of this Court and a number of cases following it. In the case of Jawadul Huq v. Ram Das Saha (1)—a case tried by a Bench of five Judges—it was held that under sub-sec. (2) of sec. 22, Bengal Tenancy Act before the amendment, on a proprietor purchasing an occupancy holding, the holding did not cease to exist but the right of occupancy ceased. This decision was followed by the Full Bench in Ram Mohan Pal v. Sheikh Kachu and it has since been followed in every reported case in which the point arose for consideration. Akhii Chandra Biswas v. Husain Ali Sowdagar (3), Purna Chandra Roy v. Mathura Mohan Shah (4) and Prafulla Nath Tagore v. The Secretary of State for India in Council (5). There is one reported case which seems to have taken a different view. In Roshan Ali v. Chandra Mohan Das , it was practically held that the law after the amendment of sec. 22 was the same as before it and the proprietor purchasing an occupancy holding did not hold the raiyati but possessed the holdings as proprietor. It will not be profitable to consider the ratio decidendi of this case as we are bound by the Full Bench decision above referred to and the cases in which it was followed. But it is argued that the Full Bench decision in Ram Mohan Pal v. Sheikh Kachu has been impliedly overruled by their Lordships of the judicial Committee in the case of Midnapur Zemindary Company v. Naresh Narayan Roy . That was a suit for partition brought by Naresh Narayan Roy against the Midnapur Zemindary Company in which one of the defences put forward by the Company was that the Company held jote rights in the lands in suit. In the authorised report it does not appear when the holdings were acquired by the Company—before or after the amendment of 1908. But assuming that it was before the amendment, it appears that their Lordships were considering the question which was raised, namely, whether the Company obtained jote rights in the holdings acquired by them. On this point their Lordships observed thus: “No co-sharer can as against his co-sharers 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.” In another passage their Lordships remarked, “Even if the Midnapur Zemindary 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.” These are the two observations in that case which have any bearing upon the question before us. It seems that their Lordships in that case were not considering the effect of a purchase by a co-proprietor under the old sec. 22(2) on the holding but were examining whether the Midnapur Zemindary Company had a permanent occupancy right in the holdings purchased by them. When their Lordships said that the purchase made by a co-sharer is for the benefit of his co-sharers, they meant to make it clear that the jote right ceased to exist for the benefit of all the co-sharers as it would by the purchase be extinguished. It will be charging the Judicial Committee with deciding a point not raised before it or argued, the effect of which decision might be to overrule the Full Bench decision of this Court and a number of other cases in which the same view was taken without examining those cases. In my opinion the decision of the Judicial Committee lays down only that if a co-sharer purchases an occupancy holding the permanent character of the holding is destroyed, but it does not decide that the raiyati will also cease to exist. A reference in this connexion may be made to the case of Golbar Bibi v. Aswini Kumar Singha Roy (8) where the Privy Council case of Midnapur Zemindary Company v. Naresh Narayan Ray was considered. It may be noted in passing that the Amending Act of 1908 was passed to undo the effect of the decisions in Jawadul Huq's case and the Full Bench decision in Ram Mohan Pal's case .

There is a finding of fact by the lower Appellate Court which disposes of the Plaintiff's claim in respect of this holding with the exception of the seven pice share owned by the Defendant No. 1's father. That Court finds that all the co-sharer landlords with the exception of Defendant No. 7 admit that they granted a jote settlement of this land to the Defendant No. 1's father after his purchase and the evidence shows that the father of Defendant No. 7 recognised those jotes. This fact is proved by numerous rent receipts and by the settlement khatians which are in favour of Defendant. On this finding of fact the Plaintiff is not entitled to succeed in respect of fourteen annas one pice share in the holding. As to the seven pice share owned by the Defendant No. 1's father in the view of the law we take he is not entitled to it.

The result is that this appeal is dismissed with costs.

The Respondents who have appeared have filed a cross-objection in respect of Schedule Ga to the plaint. The learned Subordinate Judge in his judgment has observed that Defendant No. 1 has filed no cross-objection against the trial Court's finding about the Ga Schedule land. It has been brought to our notice that as a matter of fact a memorandum of cross-objection was filed on behalf of Defendant No. 1 in the Court below. From this statement in the judgment of the learned Subordinate Judge it seems to us that the cross-objections might have been filed but were not brought to the notice of the Judge, much less were they urged at the hearing of the appeal. We cannot, therefore, entertain them in this Court. The cross-objections are also dismissed but without costs.

P.C