Dwarka Nath Misser v. Hurrish Chunder Roy Chowdhry

Appeal from an Appellate Decree, passed by the Subordinate Judge of the 24-Pergunnahs, modifying the decree of the second Moonsiff of that district.

This was a suit for khas possession of certain lands which had been purchased by the first defendant at a sale in execution of a decree of a Civil Court against two of his co-defendants, who had been joint tenants under the plaintiff with a third ryot—originally with two other ryots, but the fourth had already separated his share in the holding. The plaint alleged that the tenures of the ryots were not transferable, and that being so, the plaintiffs had a right to eject the auction-purchaser who now claimed to hold the tenures as his own. It seems that the ryot defendants attorned to the auction-purchaser, and that he allowed them to retain portions of their former holdings. Some part of the lands were, however, let out by the purchaser to other tenants.

The plaintiffs never recognised the transfer under the execution sale either by registration or acceptance of rent.

The defendants contended that the tenures were transferable by local custom. To prove this, a number of witnesses were called, and some evidence was given that there had been casual transfers of rights of occupancy in the neighbourhood, but it appeared that, as a rule, the landlords never recognised such transfers as of right.

In the lower Court the Moonsiff, being of opinion that inasmuch as the tenant whose share was not sold in execution of the decree against his joint holders, still continued to occupy under the plaintiffs, and the other two still held their lands as they had done before, the plaintiffs could not obtain khas possession, passed a decree merely declaring the holdings not to be transferable, and the purchase at the auction sale void as against the plaintiffs.

The lower Appellate Court held that the auction-purchaser was a trespasser; that there had been such a forfeiture by the ryots of the tenure as to entitle the landlord to re-enter; and that the fact of the holding having been joint threw no obstacle in the way of the plaintiffs' right of re-entry, as a definite share of the holding had been sold at the execution sale, and it accordingly gave a decree for khas possession.

Dwarkanath Misser, the principal defendant, now appealed to the High Court.

Baboo Rashbeharry Ghose, and Baboo Gurudass Banerjee, for the Appellant.

Baboo Opendro Chunder Bose, for the Respondents.

The following judgments were delivered by the High Court (1):—

Jackson, J.:— Notwithstanding the remarkable ingenuity displayed by Baboo Rashbeharry Ghose, I am unable to discover that his argument amounts to anything more than an attempt to establish in an exceptional case that rights of occupancy are transferable. The mode in which, and the circumstances under which, the power of transferring such rights is sought to be exercised will continually vary; and, although it might be possible to lay down a comprehensive rule which should suffice to exclude other such conceivable cases, I am not, for my part, anxious to frame any such formula. As I said during the argument, I desire in every case coming before me, to decide that case to the best of my ability. Of course, when in any decided cases, whether by myself or other Judges of the Court, we come upon arguments and considerations which are applicable to the case before us, although the two cases may not be precisely alike, I am very willing and ready to use those arguments. Now, the matter under consideration in one form did undoubtedly come before a Full Bench of this Court in 13 B.L.R, 274—Narendro Narayan Roy Chowdhry v. Ishan Chandra Sen, and there the learned Chief Justice Sir Richard Couch and four other Judges, of whom I was one, held unanimously that the right of occupancy which a certain ryot called A had acquired under Section 6 of Bengal Act VIII of 1869 at the time of the sale to B was not transferable; and it was further held in that case that by ceasing himself to hold or cultivate the land it might be considered that A had abandoned his right or that the right had ceased, and that no right, therefore, remained in A or his heirs such as would prevent the plaintiff from ejecting B.

It is sought to distinguish that case from the present on the ground that the outgoing tenants or persons originally in enjoyment of the right of occupancy had not voluntarily sold their rights, but the sale was the act of the Court; and, further, that the defendants, on becoming purchasers of such right as they alleged themselves to be, had continued the former holders in immediate occupancy of the land.

Now, in the case before the Full Bench, the fact that the former occupant ryot had gone out was no doubt referred to as a material circumstance. If it be true that the former occupant ryots are still upon the land, that circumstance does not exist in the same shape, but does in this shape that they are upon the land no longer as ryots with a right of occupancy but as tenants-at-will under the so-called tenant with right of occupancy. By accepting that position it seems to me that they have just as much abandoned the right of occupancy as if they had gone away from the land.

As regards the mode of transfer, it is clear there is no ground for distinguishing a voluntary sale from a sale in execution. If a sale by private contract would validly pass a right of occupancy, then a sale in execution of a decree would equally pass it, and vice versa. So far, I think, the case clearly is governed by the authority of the Full Bench ruling.

Then it was said that one of the original occupant ryots was still in possession, and as there were four such joint ryots, and one of them still remains, the right of occupancy must be considered to have inured to the survivor and the other defendants were entitled to hold jointly with him. Now, that remaining occupant ryot is no party to the suit, and from that circumstance, as well as from the findings of the Court below, and from the allegations in the plaint, I think it clear that ryots' share has been separated; and is now separately occupied by him, and that the controversy is as regards the separate shares of the other three. This argument, therefore, cannot be used on the side of the plaintiff.

On the whole, it seems to me clear that this is simply another attempt in a different shape to compel the recognition of purchases of rights of occupancy, which, in the absence of clear, well-defined custom to that effect, cannot prevail. That there was no such custom in the locality is clear from the findings of the Court below. The special appeal will be dismissed with costs. This judgment will govern Nos. 635 and 636.

McDonell, J.:— I concur.