Lakhi Kant Das Mahapatra v. Balabhadra Prosad Das And Others

Carnduff, J.:— The parties to this appeal are co-sharer landlords. The appellant purchased two occupancy jotes and the finding is that such jotes are not transferable. The respondent sought to recover khas possession of them jointly with the appellant on the ground that they must be treated as having been abandoned. Both the Courts below have concurred in decreeing the suit, the learned District Judge holding on appeal that Section 22(2) of the Ben. Ten. Act, 1885, on which the appellant has relied, does not apply to non-transferable jotes. It seems to me that the learned District Judge is clearly right and that there is no substance in the appeal.

2. On the words of the section itself I should say that transferability is implied; and it has been so ruled by this Court in the case of Girish Chandra Chawdhury v. Kedar Chandra Roy . [1900] 27 Cal. 473. The learned vakil, who appears on behalf of the appellant, agrees that decision has been practically overridden by a Full Bench of this Court in the case of Ram Mohan Pal v. Sheik Kachu . [1905] 32 Cal. 386, in which it was declared that the ruling in the earlier case of Jawadul Haq v. Ram Das Saha . [1897] 24 Cal. 143 was good law. It seems to me however that neither of the cases last mentioned clashes with or affects the ruling in Girish Chundra Chowdhury v. kedar Chandra Roy or is of any avail to the present appellant.

3. For in the Full Bench case there was the finding that the land in dispute was transferable by custom with the consent of the landlord and it is clear that in the case of Jawadul Haq v. Ram Das Saha the holdings concerned were likewise transferable. The appeal must therefore be dismissed with costs.

JUDGMENT

4. In 1907 before the Bengal Tenancy Act was amended the appellant, who is a co-sharer landlord purchased a non-transferable occupancy holding. The tenant, after the transfer, vacated the land, and the appellant came into occupation thereof. His co-sharers thereupon commenced the present litigation for joint possession. His defence was that he had acquired a valid interest under sub-S. (2), Section 22 of the Ben. Ten. Act. This defence is of no avail. That sub-section clearly applies only to a case in which a transferable occupancy holding has been purchased. If the holding which has been transferred is a non-transferable holding the purchaser acquires no interest as against the landlords. Consequently the defendant is in occupation of this parcel of land without any title, and his co-sharers, the plaintiffs, are entitled to joint possession to the extent of their shares. This is the view taken by Carnduff, J., who cites in support a decision of this Court in the case of Girish Chandra Ghowdhury v. Kedar Chandra Roy

5. The result is that the decree of Carnduff, J., is affirmed and this appeal dismissed with costs.

V.B/R.K

6. Appeal dismissed.