Authored By : Macpherson, Trevelyan, S.C. Ghose, C.H. Hill,Hamilton Wincup Gordon

Macpherson, J.

1. In my opinion the decision of Mr. Justice Beverley isright. There is no Jaw in this country which prevents one of severalco-proprietors holding the status of a tenant under the other co-proprietors ofland which appertains to the common estate. In the reported cases manyinstances will be found in which lands have been so held and in which thepossession of the co-proprietor as a tenant has been recognised. Sub-section 2of Section 22 of the present Tenancy Act does, however, provide that if anoccupancy-right is transferred to a person jointly interested in the land asproprietor, the occupancy-right shall cease to exist. It is not said, and theSub-section cannot be understood to mean, that the holding shall cease toexist, but that the occupancy right, which is an incident to the holding, willcease to exist; and there is nothing in the Sub-section inconsistent with thecontinuance of the holding divested of this right of occupancy which attachedto it. The saving clause in the Sub-section "that nothing in it shallprejudicially affect the right of any third person," indicates also thatthe holding would, for some purposes at all events, continue to exist. Thisview of the construction of the Section was taken in an unreported case, appealfrom Appellate Decree No. 37, decided by Mr. Justice Norris and Mr. JusticeBanerjee on the 30th March 1894; and the same view was also taken in the caseof Sitanath Panda v. Pelaram Tripati I.L.R. 21 Cal. 869 [LQ/CalHC/1894/63] .

2. Although the facts of those oases are not preciselysimilar to the facts of the present case, the view taken of the provisions ofSub-section 2, Section 22 of the Bengal Tenancy Act was the same as that whichI have expressed. I, therefore, think that the appeal must be dismissed withcosts.

Trevelyan, J.

3. I entirely agree with Mr. Justice Macphekson.

S.C. Ghose, J.

4. I am of the same opinion.

C.H. Hill, J.

5. I am also of the same opinion.

Hamilton Wincup Gordon, J.

1. I also agree.

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Jawadul Huq vs. RamDas Saha (01.07.1896 - CALHC)