Abbas Khan And Another v. Sk. Mohammad Hussain And Another

1. The facts established by the judgments of the Courts below are that Sheikh Mohammad Hussain plaintiff is the occupancy raiyat of certain holding within which Ramsewak has held as an under-raiyat about 9 kathas 12 dhoors continuously for about 24 years. The plaintiff alleged that this occupation was but recent. This was negatived. The plaintiff alleged misuse of the land unfitting it for the purposes of tenancy and this also was negatived. The plaintiff alleged and it has been found that Ramsewak on 7th February 1939 sold the disputed land to Abbas and Bibi Aktari defendants first party whom the plaintiff sued to eject. The sale was after the passing of the amendment made in 1938 to the Bihar Tenancy Act. The Munsif dismissed the suit observing that under Section 26A of the Bihar Tenancy Act, defendants second party having acquired a right of occupancy could transfer the bolding to defendant 1 and plaintiff had failed to prove any of the conditions under Section 25 of the Bihar Tenancy Act, under which an occupancy raiyat could be ejected. On appeal the Additional District Judge reversed this deoision being of opinion that S. 26A did not confer any right of transfer on an under-raiyat even when read with S. 48B. The land was not therefore transferable without the consent of the immediate landlord namely the raiyat who thus became entitled to re-enter as against the purchaser. This case seems to be the first in which the particular point has been raised whether the right of transfer of occupancy holdings conferred by S. 26A on every raiyat enables an under-raiyat having an occupancy right in land to transfer that land without his landlord's consent. By S. 26A an occupancy holding is transferable. ‘Holding’ is defined in Section 3(9) of the Bihar Tenancy Act, to mean a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy, clearly land not held by a raiyat is not a ‘holding,’ and an under-raiyat is not a raiyat because S. 5(2) says:

A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-bolder.

2. It is faintly suggested that a person who has an occupancy right is considered to have an occupancy holding whether he be a raiyat or under-raiyat; but chap. 5 in which S. 26A finds place is headed “occupancy raiyats,” and from the context I have no doubt that “occupancy holding” in S. 26A refers to the holding of an occupancy raiyat and not the land of an under-raiyat having a right of occupancy.

3. The right of occupancy was conferred in 1938 by a new S. 48A on any person who for 12 years had continuously held land as an under-raiyat and it was under this provision that the defendants second party were deemed to have acquired the right of occupancy in the land in suit. They therefore come within the description in S. 48B as “an under-raiyafe who has acquired a right of occupancy in any land under S. 48A” and the question for decision is whether this section makes their position analogous to that of an occupancy raiyat in respect of transfer. What the section says is that he

shall he subject to the same provisions with respeci to rights in trees and bamboos and the use of, and succession to and eviction from such land as an occupancy raiyat.

4. The rights of an occupancy raiyat in respect of trees and bamboos are dealt with in S. 23A; those in respect of the use of the land partly in 23 and partly 23A; those in respect of succession to the land in S. 26; in respect of eviction in s. 25. But s. 48B contains no suggestion to make applicable to an under-raiyat the provisions of S. 26A regarding transfers by sale, exchange or gift and bequests. I agree with the learned Additional District Judge that the omission is significant and I infer that it was the intention of the Legislature to leave the interest of an under-raiyat non-transferable as it was before the passing of the amendment in 1938. I should notice the point taken by the Munsif that the ejectment was sought by the landlord on a ground not mentioned in S. 25 of the Act and an under-raiyat having a right of occupancy is apparently by S. 48B entitled to the measure of protection given to a raiyat by S. 25; but the defendants first party cannot get any advantage from this line of reasoning because by the purchase they have not become under-raiyats with a right of occupancy. In the result the appellants cannot in my opinion resist the suit and the decision of the lower appellate Court must be affirmed and the appeal dismissed with costs.

G.N/R.K

5. Appeal dismissed.