Authored By : Beverley, Hamilton Wincup Gordon

Beverley and Hamilton Wincup Gordon, JJ.

1. In this case the plaintiff sued for a four-anna share ofthe rent of a certain jote on the allegation that the jote in question had beenpurchased by the defendants 1 to 3 in the name of defendant No. 4. Thedefendants 1 to 3, who are co-sharers in the mouza with the plaintiff, deny thepurchase of the jote. The defendant No. 4 in his written statement alleged thatthe defendants 2 and 3 had purchased the jote, benami, in his name, and thatdefendants 2 and 3 were in possession.

2. The first Court found that the defendants 1 and 2 hadpurchased the jote in the name of defendant No. 4, and were in possession ofthe jote, and decreed the suit against the defendants 1 to 4. This decree wasreversed by the Subordinate Judge on the ground that under Section 20,Sub-section (7), of the Bengal Tenancy Act, the defendants must be presumed tobe ryots with a right of occupancy, and therefore under Section 22, Sub-section(2), the right had merged in their superior right as proprietors, and that norent could be claimed by the plaintiff therefor, and he accordingly allowed theappeal and dismissed the plaintiffs suit.

3. It is contended in second appeal that the Lower AppellateCourt is wrong in law in its interpretation of Sections 20 and 22 of the BengalTenancy Act, and in reply to that the respondent has endeavoured to support thedecree of the Lower Appellate Court by showing that there is no legal evidenceof the purchase of the jote, by the defendants and of their possession inpursuance of it.

4. We think it is impossible to say that there is absolutelyno evidence of the purchase, although in our opinion that evidence is extremelyslight, and had we to decide the point upon the evidence, we might have come toa different conclusion, but there being some sort of evidence, the lower Courtswere justified in finding as a fact that the defendants had purchased the jote,and we cannot interfere with that finding of fact.

5. Then as regards the other point raised by the appellant,it appears to us that, whether or not the jote was an occupancy holding,Section 22, Sub-section (2) of the Bengal Tenancy Act does not operate toprevent the landlord from recovering the rent of the holding. Sub-section (2)runs as follows: "If the occupancy right in land is transferred to aperson jointly interested in the land as proprietor or permanent tenure-holder,it shall cease to exist; but nothing in this sub-section shall prejudiciallyaffect the rights of any third person." That is to say, the occupancyright will cease to exist, but it does not follow that the tenancy will bealtogether extinguished. The third person mentioned in the clause must be heldto include every person interested other than the transferor and transferee. Sothat the acquisition of an occupancy right by a proprietor would not affect theright of a co-sharer landlord to receive his share of the rent of the tenancy.

6. That being so, the decree of the Lower Appellate Courtmust be reversed, and that of the first Court restored with costs in both theAppellate Courts. The finding of the Appellate Court being that the defendants1 to 3 purchased the jote the decree will be against them, and the suit will bedismissed as against defendant No. 4.

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Sitanath Panda vs.Pelaram Tripati and Ors. (06.06.1894 -CALHC)