Authored By : Thomas William Richardson, H. Walmsley

Thomas William Richardson, J.

1. The appellants before us are the plaintiffs in a suit forpossession. They claim the right to possess the land to which the suit relatesas under-raiyats. The defendants include some of the co-sharer-landlords of theoriginal raiyati holding. They have purchased the holding in execution of adecree for money obtained by them against the original raiyat. It is alleged thatafter their purchase they sub-let the land to the original raiyats, that is, tothe persons under whom or under whose predecessor the plaintiffs originallycame in as under-raiyats. These persons have also been made defendants. TheCourt of Appeal below has dismissed the suit on the ground that under Section85 (1) of the Bengal Tenancy Act the plaintiffs have no valid title topossession as against the landlord defendants.

2. The conclusion seems to me to be based on amisapplication to the facts found of the law contained in the Bengal TenancyAct as explained and illustrated by decided cases. The present case is clearlywithin the principle of such oases as Amirullah Mahomed v. Nazir Mahomed 34 C.104 : 3 C.L.J. 155 and Lal Mahomed Sarkar v. Jagir Sheikh Mallik 2 Ind. Cas.654 : 13 C.W.N. 913. The distinction between the position of a landlord whopurchases a raiyati interest under a private alienation and the position of thelandlord who purchases that interest in execution of a decree for arrears ofrent at a sale under the Bengal Tenancy Act is also adverted to in the case ofJanaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 898 [LQ/CalHC/1915/196] : 19 C.W.N. 1077 : 22C.L.J. 99 : 43 C. 178. The landlord who purchases at a sale in execution of adecree for money is in no better position than the landlord who purchases undera private alienation. In both cases the purchaser is the purchaser of theright, title and interest of the raiyat.

3. No doubt the law as it was laid down in the two earlierof the cases to which I have referred, more especially in the case reported asLal Mahomed Sarkar v. Jagir Sheikh Mallik 2 Ind. Cas. 654 [LQ/CalHC/1909/245] : 13 C.W.N. 913depended to some extent upon the provisions of Section 22 of the Act as theyoriginally stood, and not upon those provisions as modified by the Amending Actof 1907. Moreover both cases were decided under Clause (1) of the section whilethe present case, the purchase of the holding having been made by some of theco- sharers-landlords, falls to be decided under Clause (2). But the resultarrived at in the two cases in regard to transfers under Clause (1) had alreadybeen arrived at by a Full Bench in regard to transfers under Clause (2) RamMohan Pal v. Sheikh Kachu 32 C. 386 : 9 C.W.N. 249 : 1 C.L.J. 1 (F.B.). I havereferred to the two cases because they explain the principle more fully andillustrate its effect upon the position of the under-raiyat let in by thetransferring raiyat. Under both Clauses (1) and (2) in their original form theeffect was that only the occupancy right and not the entire interest of thetransferring raiyat came to an end and the transferee landlord (whether a solelandlord or a fractional landlord) could not say that the whole tenancy hadbeen extinguished. Some intermediate interest still remained derived by thelandlord from the raiyat which prevented the landlord from insisting upon anyright which he might otherwise have had under Section 85 (1) to treat theunder-raiyat as a mere trespasser.

4. It is unnecessary on the present occasion to consider theeffect on the case-law of the change made in the language of Clause (1) ofSection 22.

5. As regards Clause (2) the change does not seem for thepresent purpose to have altered the law as previously understood. Thefractional landlord still appears to acquire from the raiyat some sort oftenancy or intermediate interest with the same effect as regards the right totreat the under-raiyat as a trespasser as before. Other, and possibly moredifficult, problems may arise, but for the present purpose the topic need notbe further pursued.

6. In my opinion the judgment and decree of the SubordinateJudge in the lower Appellate Court must be discharged and the case must beremitted to that Court in order that it may determine the issue dealt with bythe Munsif but not dealt with by the Subordinate Judge, whether the plaintiffshave proved their title as under-raiyats under the original raiyats. If thatissue is decided against the plaintiffs the suit will be dismissed. If it isdecided in favour of the plaintiffs, a decree will be made entitling them tokhas possession of the land in dispute and, unless the Subordinate Judge isable to dispose of the question either by agreement of parties or on thematerials on the record, remitting the case to the Trial Court for furtherenquiry as regards the claim for mesne profits.

H. Walmsley, J.

7. I agree.

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Babu Ram Dheng and Ors.vs. Upendra Nath Koley and Ors.(27.02.1918 - CALHC)