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Abdul Hamid Vs. Bora Tataya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 105 of 1948
Judge
Reported inAIR1951Ori153
ActsTenancy Law; Orissa Tenancy Act, 1913 - Sections 236; Orissa Tenancy (Amendment) Act, 1946 - Sections 3 and 4; Transfer of Property Act, 1882 - Sections 117
AppellantAbdul Hamid
RespondentBora Tataya and ors.
Appellant AdvocateP. Sen and ;L.K. Dasgupta, Advs.
Respondent AdvocateN. Mukherji, Adv.
DispositionAppeal dismissed
Cases ReferredJohab v. Sri Krishna
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....jagannadhadas, j.1. defendant 1 is the applt in this 2nd appeal. the appeal arises out of a suit for ejectment filed by the pltf against defts 1 and; 2 in respect of a homestead land, .015 acre in. extent and appertaining to plot 236 in cuttack town. plot 236 out of which the suit-plot has been carved out is a homestead plot in respect of which the pltfs have been recorded in the settlement records as chandnadars. deft 2 obtained a lease of the suit-plot from the pltfs and has been in possession thereof for a considerable period of time, for over 20 years according to the pltf, but according to deft for over 40 years. deft 2 had admittedly erected a house on it & has been recorded in the current settlement record-of-rights as a darhandnadar. on 30-6-45, deft 2 sold the land with the.....
Judgment:

Jagannadhadas, J.

1. Defendant 1 is the applt in this 2nd appeal. The appeal arises out of a suit for ejectment filed by the pltf against defts 1 and; 2 in respect of a homestead land, .015 acre in. extent and appertaining to plot 236 in Cuttack town. Plot 236 out of which the suit-plot has been carved out is a homestead plot in respect of which the pltfs have been recorded in the settlement records as Chandnadars. Deft 2 obtained a lease of the suit-plot from the pltfs and has been in possession thereof for a considerable period of time, for over 20 years according to the pltf, but according to deft for over 40 years. Deft 2 had admittedly erected a house on it & has been recorded in the current settlement record-of-rights as a Darhandnadar. On 30-6-45, deft 2 sold the land with the superstructure thereon to deft 1. Pltf accordingly filed the suit for ejectment against both defts 1 & 2 on 5-9-45. It is the pltf's case that deft 2 was a mere tenant-at-will under him & that he had no right to make any transfer without his consent. Such consent for the transfer in favour of deft 2 not having been obtained, he was entitled to evict the defts &. re-enter on the land. Deft 2 was 'ex parte'. Deft 1 alleged that deft 2 was not a mere tenantat-will under the pltf, but that he was a permanent tenant or acquired permanency rights He denied that deft 2's rights were not transferable without the consent of the pltf. The Cts below have concurrently held that the pltf is entitled to a decree for ejectment. Hence the; 2nd appeal by deft 1.

2. In the trial Ct, the contesting deft set up that deft 2 was admitted to the tenancy under a document giving him a permanent right of occupancy & also alleged that the ejectment suit was not maintainable as there was no proper notice to quit. The alleged written lease was found against & the notice to quit has been found to be sufficient in law. These questions have not been reagitated before us, but it is necessary to note that the deft has not set up the existence of any custom by which deft 2 had permanency rights in his tenancy or a right to transfer his. interest in the Iand without the consent of the pltf. The lower-appellate Ct in confirming the decree granted by the trial Ct, stated as follows:

'A Dar-Chandnadar is a mere tenant-at-will and it is the settled principle of law that a. Dar-Chandnadari right is not either transfer able or heritable'.

& based its decision on this view of the law. The point raised in this appeal is that this assumption of the learned Judge is erroneous & that in any case the Orissa Tenancy Amendment Act of 1946, i.e., Act X (10) of 1946 which came into force when that appeal was pendingtaken with the Orissa Act XXXII (32) of 1947 has made a change of the Law in this respect & that the lower appellate Ct has not noticed this change.

3. In 'Dulai Dei v. Chema Das', S. A. 156/37 (8 Cut. L. Notes 6), his Lordship Fazl Ali J. stated as follows:

'It is now well-settled that a Chandnadar himself has only a non-transferable interest & it follows that a Dar-Chandnadar also cannot transfer his right'.

This appears to justify fully the assumption made by the learned Judge of the lower appellate Ct in the passage above extracted from his judgment. It is true that there is no discussion of this question in the judgment of Fazl Ali, J., but this was so presumably because the legal position was considered so well established that it could not admit of a contrary argument. It has no doubt been held in 'Johabaj Khan v. Sri Krishna De', AIR (23) 1936 Pat, 29: (15 Pat 187 FB) that the burden lies upon the landlord to prove usage or custom in proof of his right to eject a Chandnadari tenant if he wants to maintain ejectment against him. But so far as transferability of the Chandnadari right or the DarChandnadari right is concerned, no case has been brought to my notice which conflicts with the view above stated by his Lordship as being the settled law. On the other hand, cases in 'Chintamani Raut v. Sri Ram Chandrakar', AIR (21) 1934 Pat 422 : (149 IC 805); 'Mt Haliman Bibi v. Mohd. Tajamul Hussain', AIR (26) 1939 Pat 504: (185 IC 250) and 'Safiruddin v. Tarak Nath', AIR (36) 1949 Pat 180: (14 Cut LT 12) establish the correctness of the proposition so far as the Chandnadars are concerned, & it would follow 'prima facie' that the same is the law as regards Dar-Chandnadars who are merely under-tenants of Chandnadars. In fact, & in fairness to Mr. Das Gupta, learned counsel for the applt, it must be said that he did not seriously maintain that, apart from proof of custom in any particular case, there are any reported decisions showing that a Chandnadari or Dar-Chandnadari right is transferable or that there is any general & well-recognised custom in this behalf.

4. What however is maintained seriously is that the two Acts above mentioned have made a change. There can be no doubt that so far as the Chandnadar is concerned, the law has made a change. There appears to have been some doubt as to the effect of Orissa Act X (10) of 1946 in relation to its application to the case of a Chandnadar. In 'Safiuddin v. Tarak Nath', AIR (36) 1949 Pat 180: (14 Cut LT 12). Iyer J. appears to have held that Act X (10) of 1946 did not make any change as regards the transferability of the holding by a Chandnadar which in his opinion, still continued to be regulated by local custom & usage under Schedule 36, Orissa Tenancy Act. It is in view of this decision, that Act XXXII (32) of 1947 appears to have been passed making the 1946 amendment specifically applicable to Chandnadars with retrospective operation from the commencement of 1946 Act.

5. Appellant's counsel contends that amending Act of 1946 renders the Dar-Chandnadari right in the homestead also transferable & that the effect of the 1946 Act is to confer the transferability retrospectively both in respect of the Chandnadars & Dar-Chandnadars. It has to be noticed that 1946 Act itself came into operation on 20-11-1946, that is, after the disposal of the present suit by the trial Ct and also that the transfer in favour of deft 2 was more than 2 months, prior to the institution of the suit it self. The two questions that arise for consideration are (1) whether the Orissa Act X (10) of 1946 is retrospective in operation & if so to what extent; (2) whether the Act applies to a Dar-Chandnadar.

6. It is contended that Schedule , Orissa Tenancy Amendment Act of 1946, which is the operative section, applies to every person who is a 'tenant' falling within the definition thereof of the Orissa Tenancy Act & that a Dar-Chandnadar falls within the definition & gets the benefit of the Amendment Act. This is the question raised in point 2 above which I shall deal with later.

7. For the purpose of consideration of point 1, I shall assume, without deciding, that a Dar Chandnadar is a tenant within the meaning of the Orissa Tenancy Act. It is contended that deft 2 who is recorded as a Dar-Chandnadar is entitled to the benefits of the Act & that therefore the transfer by him in favour of deft 1 is a valid transfer & makes him also a Dar-Chandnadar entitled to the benefits of the Act. In view of the fact that the transfer by deft 2 to deft 1 was as stated above, prior to the coming into force of the amendment Act of 1946, it is clear that deft 1 cannot get the benefit of the Act in any case, unless it is retrospective in operation. The argument about retrospectivity, therefore, is pressed & is put in two ways, (a) It is said that Schedule is declaratory in character & therefore retrospective; (b) It is said that since Schedule applies to all pending proceedings, deft 2, & therefore deft 1, come within the purview of the same.

8. Section 3, Orissa Act X (10) of 1946 is in the following terms:

'For sub-s, (1) of Schedule 36, Orissa Tenancy Act, 1913 the following sub-section shall be substituted, namely: Notwithstanding anything in this Act the incidents of tenancy of any tenant, including the holder of a service tenure, in respect of the homestead in which such tenant ordinarily resides, shall be regulated by the provisions of this Act, applicable to land held by an occupancy raiyat'.

Section 236 (1) as it previously stood was:

'When a raiyat holds his homestead otherwise than as a part of his holding as a raiyat, the incidents of his tenancy of his homestead shall be regulated by local custom, or usage & subject to local custom or usage, by the provisions of this Act applicable to lands held by a raiyat'.

The argument is that since the section comes in by way of substitution for a pre-existing section of the Orissa Tenancy Act of 1913, it must be taken as though it was part of the Orissa Tenancy Act of 1913, from its commencement & was meant to be declaratory of the law in this behalf from the outset. To enforce this argument, stress is laid upon the use of the phrase 'incidents of tenancy......shall be regulated by the provisions of this Act', etc, which, it is said, means that it shall be taken as though those incidents had always attached to it. It appears to me that this argument is untenable. The Act itself purports to be an amending Act as recited in the preamble:

'Where as it is expedient to amend the Orissa Tenancy Act, 1913, in the manner hereinafter appearing'. Further Schedule says 'shall be sub stituted' & does not say 'shall be deemed to have been always substituted'. For instance, when this Amending Act of 1946 was further amended by Act XXXII (32) of 1947, & was intended to give retrospective operation from the date of the prior Act of 1946, the wording used is:

'for Sub-section (2), the following sub-section shall be substituted & shall be deemed always to have been substituted'.

Clearly the Orissa Legislature was using an appropriate & unambiguous set of words when it meant to convey the idea of retrospective operation. The inference is implicit that when those or similar words were not used, no retrospective operation was meant. It is a well-established canon of construction that every Act is 'prima facie' prospective in its operation, & that unless the language used by the Legislature is clear & unequivocal, retrospective operation is not to be inferred. This proposition has been clearly laid down by the House of Lords in 'James Gardner v. Edward A Lucas', (1878) 3 AC 582. It has been urged that the section is & was intended to be declaratory & that therefore it must be taken to be retrospective in operation. It appears to me that there is absolutely no foundation for this suggestion. It does sometimes happen that if the Legislature meant to convey a particular meaning by the use of particular language & the Cts have construed it differently or a conflict has arisen with reference to the interpretation thereof, the Legislature intervenes by a subsequent enactment to explain or declare what it meant to be the law. There may be room for contention in such cases that the fresh enactment is declaratory & is meant to be retrospective. But even in such cases the retrospective operation is not a matter of course, but is one to be gathered from the clear wording of the amending Act. For instance, the P. C. in 'Shamu Patter v. Abdul Kadir', 35 Mad 607: (39 IA 218 PC) (reiterated in 'Mt. Hirabibi v. Ram Harilal', 5 Pat 58: (AIR (12) 1925 PC 203) construed the word 'attestor' in T. P. Act to be a person who was present at the time of the execution & saw the executant signing. The Legislature amended the T. P. Act by introducing a definition of the word 'attest' into it, by Act XXVII (27) of 1926 which purported to be 'explanatory' of the meaning of the word 'attest' & defined the word 'attest' as meaning something different from what the P. C. laid down. This was held by the Cts not to be enough to give retrospective operation to the meaning of the word 'attest' (See 'Netra v. Sajer Pramanik', AIR (14) 1927 Cal 763: (55 Cal 67) & the Legislature consequently once again came up with a further amendment by Act X (10) of 1927 whereby it said that the word 'attest' means & 'shall be deemed always to have meant' in the particular way. It is therefore clear that even in a case where the intention of the Legislature may have been to explain the pre-existing law, that intention, to make it retrospective, must be expressed in clear & apt language to bring about that result. In the present case, however, not only is there no such language, but there was no scope for any ambiguity as to what the previous law was which required to be cleared up by a declaratory Act. The previous law under Schedule 36 (1) as it stood was very clear, without ambiguity & applied only to raiyats, but the substituted sub-section applies to tenants, a wholly different and enlarged category. There was no previous recognition of any customary law in this behalf applicable to all classes of tenants, & indeed the law appears to have been clear the other way.

9. It has been strenuously argued that the Amending Act is of a remedial nature, that the Legislature was anxious to protect the position of all agricultural tenants in relation to their homestead & that being a remedial statute, full effect must be given to it by giving retrospective operation. I am unable, with respect, to follow this argument. It may be perfectly true that the Legislature wanted to protect the tenants with respect to their homestead by giving them larger rights, but it does not follow that it intended to change the situation retrospectively. The principle that a remedial statute must be construed as to advance the purpose of the Act & to suppress the mischief intended to be prevented thereby, is a wellknown principle, but can be invoked for retrospective operation only when the language is reasonably susceptible of the same. I am not aware of any principle laying down that merely because a statute is remedial, it must 'prima facie' be presumed to be retrospective irrespective of the language used. For instance, as pointed out at p. 196 of 'Maxwell on Interpretation of Statutes' 8th Edn. the Wine & Beer House Amendment Act of 1817 which enacted that

'every person convicted of felony should for ever be disqualified from selling spirits by retail & that if any such person should take or has taken out a licence for that purpose, it should be void'.

Was held to include a man who had been convicted of felony before & had obtained a licence after the Act was passed, relying on the principle of construction in favour of advancing the remedy & suppressing the mischief. But this construction was possible only because the phrase 'convicted of felony' might equally apply to a future conviction as well to a past conviction. It is, therefore, clear to my mind that since there is nothing in the language of Schedule , Amending Act, which is ambiguous or comprehensive enough to bring about the past operativeness of the benefits of the Act to all classes of tenants there can be no Justification for construing Schedule as having retrospective operation. This conclusion to my mind is strengthened by the fact that the Amending Act itself has in terms prescribed & provided for a limited retrospective operation as regards pending proceedings by Schedule .

10. The question has therefore next to be considered as to what is the effect of Schedule & whe-ther that can be evoked in aid of deft 1 in this case to protect him from ejectment. Section 4, Orissa Act X (10) of 1946 runs as follows:

'Any suit for the ejectment of any tenant, including the holder of a service tenure, instituted before the commencement of this Act, or any execution proceeding arising therefrom, shall be disposed of as if Schedule 36, Orissa Tenancy Act, 1913 as amended, by this Act, had been in force at the time of the institution of the said suit in the Ct of the first instance.'

The argument was that in respect of pending suits, the benefit of the Act is given to the tenant, though the Act was not in force by the date of the institution of the suit. It is argued therefore that as a result of it deft 2 is to be treated as an occupancy raiyat & that it follows that deft 1 who derives title by a transfer under him must also be treated as an occupancy raiyat not liable to ejectment. It may be conceded at once that if the ejectment suit were only against deft 2 & if it appeared on the facts that deft 2 was ordinarily a resident in the suit homestead by the date of the institution of the suit, S 4 would clearly protect him from ejectment. But that question does not require consideration now, since the trial Ct passed a decree for ejectment against both the defts & there has been no appeal therefrom by deft 2 either in the lower appellate Ct or here. The decree for ejectment having become final as against him, the question as to whether that decree is correct, does not call for any consideration or for fresh investigation of facts so far as he is concerned . So far however as deft 1 is concerned, the flaw in the applt's argument is the untenable assumption that because deft 2 would not have been liable for ejectment by virtue of Schedule , deft 1 who purports to derive title from him would also not be liable for ejectment. This however, depends upon whether deft 1 can also be said to be a 'tenant' within the meaning of Schedule by the date of the institution of the suit. That would be so only if the transfer, under which he claims, of the date 30-6-45 long prior to the coming into force of the Amending Act of 1946 & some months prior to the institution of the present suit, can be said to be valid so as to have vested legally the Dar-Chandna right in him as against the pltf-Chandnadar. It appears to me to be clear that 5. 4 cannot have that effect. The effect of Schedule is to give retrospective operation only from the moment of the institution of the suit as regards pending suits for ejectment against tenants, & not to attach all the incidents of an occupancy right to such a tenant from any prior point of time. Learned counsel for the applt points out and stresses that the section says:

'the suit shall be disposed of as if Schedule 36 as amended had been in force at the time of the institution of the suit.'

He points out that by the use of the phrase 'had been in force' the retrospective operation is not intended to commence from the point of time when the suit was instituted, but from such earlier point of time as may be necessary for the disposal of any relevant issue arising in the case. He urges that so taken, since one of the issues arising in the case is whether the transfer by deft 1 to deft 2 is valid the retrospective operation is available for the decision of that issue also. It appears to me that this argument, though ingenious, cannot be upheld. The use of the past perfect 'had been' instead of the past tense 'was' is easily explicable in view of the fact that in relation to the disposal of the suit, the section contemplates past events namely, the coming into force of the Act & the institution of the suit. It may also have been thought necessary to provide for the difficulties of construction that might arise if both the past events were stated to be simultaneous occurrences giving rise to difficult questions as to whether, if the operation of the Act was simultaneous with the institution of the suit, it could be said that the Act was ineffective prior to operation so as to govern the suit. It appears to me therefore there is no warrant for reading Schedule as though it said not that the Act was to be taken to be in force from the time of the institution of the suit, but that the issues in the suit were to be disposed of on the footing that the tenant always had all the incidents of an occupancy raiyat. The anomaly of such a construction would be patent if a case is assumed, where, as in this very case, a transfer had been made prior to the coming into force of the Act, but no suit had been filed at all for ejectment until after 1947. It is obvious that Schedule could not possibly be made to apply to such a subsequent suit and accordingly the transferee in that hypothetical case cannot be protected from ejectment. There can absolutely be no reason for this distinction. It would mean that if the landlord was diligent he is to suffer, but that if he was lax, he was to get an advantage. It is, therefore, clear to my mind that Schedule cannot bear the interpretation that the learned counsel sought to put on it, neither can it be said that deft 1 can by any stretch of imagination be said to fill the category connoted by the word 'tenant' in Schedule on the date of the institution of the suit, since the transfer itself when made, cannot be said to be valid & binding as against the pltf landlord.

11. It is next argued for the applt that whatever the anomaly of the above construction the effect of Schedule in respect of pending suits would be to validate a prior transfer in another view of the matter. It is pointed out that under the section

'pending suits should be disposed of as if the amended Schedule 36 had been in force at the time of the institution of the suit.'

Even conceding that this indicates a point of time almost simultaneous with the institution of the suit, it would follow from Schedule , Orissa Act X (10) of 1946 that the 'incidents of tenancy' attach to the holding in the hands of deft 2. It has been suggested that the reference in the section by use of the phrase 'incidents of the tenancy' must have been to the group of Sections 27 to 31 (B), Orissa Tenancy Act, all of which appear under the heading 'Incidents Of Occupancy Right'. It is therefore urged that Schedule 1 (B), Orissa Tenancy Act which relates to pre-amendment transfers is thereby attracted. This again, is an ingenious argument, but without any susbtance. Apart from the very doubtful question whether 'the incidents of tenancy' which are to be regulated by the provisions applicable to an occupancy raiyat connote the whole group of Sections 27 to 31 (B), it is clear that the phrase 'shall be regulated' shows that only such of them as can be made applicable shall apply. A bare reading of Schedule 1 (B) shows clearly that it cannot be made to apply, because it applies in terms to a transfer of an occupancy holding made before the commencement of the Orissa Tenancy Amendment Act of 1938 which is not the present case. I have therefore no hesitation in coming to the conclusion that no provision of the Orissa Tenancy Amendment Act of 1946 can be invoked for the benefit of deft applt in this case.

12. This is enough to dispose of the appeal & to entail its dismissal. It is, therefore, not necessary to express any final opinion on the larger question that has been raised before us, namely, whether the word 'tenant' in the Amendment Act of 1946 includes a Dar-Chandnadar and whether the benefits of the Act can be extended to him.

13. Since, however, that question has been mooted before us, I shall very briefly deal with the matter. The word 'tenant' has been defined in the Orissa Tenancy Act as meaning

'a person who holds land under another person & is or but for a special contract would be liable to pay rent for that land to that person.'

A Dar-Chandnadar who holds homestead land under a Chandnadar on condition of paying rent to him for the same, appears to be comprehended by this definition. No doubt, the various classes of tenants for the purposes of the Act have been specified in Schedule . But it has been held with reference to the corresponding section of the Bengal Tenancy Act that this classification is not exhaustive & that there may be classes of tenants governed by the Tenancy Act and outside these categories, for instance, a tenant of a private land (See 'Janki Singh v. Jagannath Das', AIR (4) 1917 Pat 305: (42 IC 177 FB). But the question still is whether having regard to the scope of the Orissa Tenancy Act, it was meant to apply to a Dar-Chandnadar who is a mere under-tenant of a Chandnadar of a homestead land essentially meant for residential purposes. It has been argued, on the side of the applt, that once a Chandnadar has been given the status of an occupancy raiyat in respect of the homestead, it follows that the under-tenure created by him is regulated by the same incidents & is not in any way affected by the purpose for which the under-tenancy lease is created. In support of this, cases in 'Babu Ram v. Hemendra Nath', 8 CWN 454, & 'Krishna Kanta Ghose v. Jadukasya', 21 CLJ 475: (AIR (3) 1916 Cal 32) have been relied upon. On the other hand it has been urged that those are cases which are specifically covered by Schedule 82, Bengal Tenancy Act corresponding to Schedule 36, Orissa Tenancy Act as it stood before the 1946 Amendment. It is urged that the Orissa Tenancy Act applies only to tenancies for agricultural purposes, & that where the tenancy is not for agricultural purposes, it is the T. P. Act which must govern the rights of the parties & that therefore such an under-tenant cannot be held to fall within the definition of the word 'tenant' in the Orissa Tenancy Act. In support of this position, cases in 'Radhamohan v. Kasinath Das', 1 Cut LT 28 & 'Hadumaharana v. Ram Dulal', 9 Cut LT 27: (AIR (31) 1944 Pat 35) & 'Syed Husain Ali v. Gobinda Lal', 9 Cal WN 141 have been relied upon. See also 'Rakhal Das v. Danomoyi Debi', 16 Cal 652. It appears to me that the question is not altogether free from difficulty. The proposition that the Orissa Tenancy Act applies only to agricultural leases, relying on the decisions under the Bengal Act, is one that can only be accepted with some reservation, because the Orissa Tenancy Act has specifically included Chandnadars within the class of tenants. Though there is no clear definition of the word 'Chandnadar' in the Orissa Tenancy Act excepting that it means 'persons holding land recorded, as Chandnadar in the course of the settlement', it would appear from the settlement report of Maddox at p. 222, para 327 that:

'Shopkeepers, artisans & labouring classes having no arable lands in the village but holding only homestead lands and paying rent therefor are called Chandnadars.'

Hence Chandnadari tenancy appears to be residential tenancy of the homestead & it may be argued that the Orissa Tenancy Act is not confined to agricultural tenancies. It is possible however that the inclusion of such tenants within the scope of the Orissa Tenancy Act which no doubt is mainly concerned with cultivating tenancies, as appears from the definition of words 'tenure-holders & raiyats' may have been justified on the ground that such persons were an essential & component part of the agricultural economy of the village. It may be therefore debatable whether the somewhat wide definition of the word 'tenant' in the Tenancy Act should be held also to include merely residential under-tenancies of homestead lands unless the Act definitely says so. In this context, it would be relevant to notice that by virtue of Schedule 17, T. P. Act, leases for agricultural purposes are exempted from the operation of the said Act implying thereby that unless the lease is for agricultural purposes, T. P. Act would govern. While it may be that a Chandna lease may be held not to be governed by the T. P. Act, by virtue of the specific inclusion of it under the Orissa Tenancy Act the validity of which has not been challenged, it may be questioned whether a Dar-Chandna lease is to be held to fall outside the T. P. Act as a matter of course. Whether the Dar-Chandnadari-under-tenancy is to be regulated by the T. P. Act or the Orissa Tenancy Act may be a question of fact to be determined in each case having regard to the essential purpose of the particular underlease. The fact that a settlement officer has recorded a particular holding as Dar-Chandna holding in a settlement may, if at all, be some evidence in this connection that it was meant to be agricultural. It would not probably be entitled, however, to any statutory weight since under Schedule 13, Orissa Tenancy Act, a Dar-Chandnadari right is not one of the items to be recorded by a settlement officer. The use of the terms 'Dar-Chandnadari' appears to have come into vogue during the current settlement operations (1922-32), see 'Dalziel Report', P 44, & the difficulty of dealing with non-agricultural residential leases or underleases as within the purview of settlement operations appears from a perusal of the said report, p. 159 & Pp 22, 23. It appears to me, however, that if a tenancy including a Dar-Chandna lease is clearly for a residential purpose, it cannot attract the applicability of the Amending Act X (10) of 1946, but must be regulated by the T. P. Act, since the Amending Act has not received the assent of the Govern-or-General & in a conflict between the two Acts, the Central Act must prevail, in the absence of the assent of the Governor-General. (See Schedule 07, Govt of India Act, 1935). But in view of the opinion that I have come to on the question of the retrospective operation of the Amending Act of 1946, it is, as already stated, unnecessary for me to express any final opinion on this matter.

14. In the result, therefore ,the appeal must be dismissed with costs.

Panigrahi, J.

15. This appeal arises out of a suit in ejectment filed by resps 1 to 3 against the applt & resp 4 who were respectively defts 1 & 2 in the suit.

16. The pltfs are the chandnadars of a holding measuring .015 of an acre in plot 236 of Bakhrabad in Cuttack town, appertaining to touzi 2498 of which the proprietor is one Ganeshlal Pandit. The pltfs were recorded at the last settlement as raiyat in respect of three plots belonging to this touzi & as 'Madhyasatvadhikaris' in respect of 10 plots - the suit plot toeing one of them which were actually in the occupation of other raiyats. The first 3 plots were recorded in the name of the pltfs as 'Nijdakhal' & the other 10 were recorded as 'Praja Dakhal' - Ex. 5. The status of deft 2 'Was recorded in khatian 1098 as 'Dar-Chahdnadar' while that of the pltfs was recorded as 'Madhyasatvadhikari'. The annual rent for the holding in the occupation of deft 2 was Re. 1/- before the settlement, but it was enhanced at the settlement to Rs. 1-8-0, the rent being payable on the 30th of Aswin every year - Ex. B. The status of deft 2, as 'Dar-Chandnadari' is also recorded in the khewat of the holder of the touzi in respect of this holding - Ex. 5/a. Defendant 2 was in possession of the plot & had put up a dwelling house thereon for at least 20 yrs according to the pltfs, & for over 40 yrs according to the defts. Deft 2 sold the house on 30-6-45 by a registered sale deed (Ex. A) to deft 1. The pltfs thereupon immediately issued a notice to quit on 10-7-45, & filed the -suit out of which this appeal arises, on 5-9-45. The 3rd Additional Munsiff granted a decree to favour of the pltfs on 11-9-46 holding that deft 2 had no permanent right in the land & could not, therefore, transfer it to deft 1. Against this decision deft 1 preferred an appeal in the Ct of Dist J, in Munsifi App. No. 207 of 1946, & the learned Judge agreed with the 'finding of the Munsif and dismissed the appeal on 10-12-47. Hence this 2nd appeal by deft 1.

17. Both the Cts below have found that the lease in favour of deft 2 being subsequent to the passing of the T. P. Act, was void as there 'was no registered document creating the lease & that the status of deft 2 was therefore that of a tenant-at-will who was liable to be evicted on a mere notice to quit. The appellate Ct also assumed that it is a settled principle of law that a darchandnadari right is neither transferable nor heritable.

18. During the pendency of the appeal in the Ct of the Dist J the law relating to homesteads underwent a change. The Orissa Tenancy (Amendment) Act 1946 X (10) of 1946 was passed on 20-11-46 &. was later amended by the Orissa Tenancy Second (Amendment) Act, XXXII (32) of 1947 on 10-12-47. The decision of the appeal depends upon the effect to be given to the Amending Acts passed by Orissa Legislature. It is contended for the applt that (1) a dar-chandnadar is not a mere tenant-at-will & that he has an interest in the property, the other incidents of his tenure being similar to those of a chandnadar himself; & (2) irrespective of the fact whether the interest of a dar-chandnadar was transferable or not before 1946, the Amendment Act X (10) of 1946 confers that right of transferability retrospec tively upon the tenant, of a homestead such as a dar-chandnadar. It is on the other hand contended for the resps that (i) the Amendment Act X (10) of 1946 in so far as it affects nonagricultural holdings is 'ultra vires' the Provincial Legislature; (ii) the Orissa Tenancy Act does not govern leases of homesteads not connected with agriculture; & (iii) the Amendment Act X (10) of 1946 is not retrospective.

19. The law relating to the homestead of a raiyat holding it otherwise than as a part of his agricultural holding is laid down in Schedule 58 (1) (sic), Orissa Tenancy Act. The incidents of such tenancy are declared to be regulated by custom or usage, & where no such custom or usage is established, by the provisions of the Act applicable to lands held by a raiyat. Sub-section (2) of Schedule 36 similarly declares the law applicable to the class of tenants known as chandnadars who were in occupation of homestead lands & had put up dwelling houses thereon. This class of tenants had nothing to do with agriculture & consisted mostly of shopkeepers, artisans, tradesmen, & the like. The Orissa Tenancy Act treated them as tenants & put them on the same footing as agricultural tenants in 1913 as, it is said, they formed an integral part of the agricultural economy of the village.

20. In order to appreciate the merits of the rival contentions it is necessary to ascertain the existing law which was sought to be 'amended' & to see how the Legislature did it. Chandna holdings had been in existence long prior to the first Provincial Settlement of the Province & their status is to be determined by the land laws then in force in the Province. Regulation 44 of 1793 which applied to a few parganas in the Orissa Division, exempted from its operation the grant of leases of pattas for periods exceeding 10 years for the erection of dwelling houses or buildings though, in respect of leases of other lands, the proprietor was prohibited. Bengal Act X (10) of 1859 which conferred the right of occupancy on every raiyat who held land for a period of 12 yrs, did not define the word 'raiyat'. Bengal Act XI (11) of 1856 (Sale of Land for Arrears of Land Revenue Act) exempted the vesting of leases of lands, whereon dwelling house had been erected, in the purchaser of an estate, whether permanently settled or not, by Ss 37 & 52 of that Act. Section 52 says that the purchaser of an estate not permanently settled & sold for recovery of arrears of rent due on account of the same, shall

'acquire the estate free of all encumbrances except leases of lands whereon gardens, plantations, tanks, wells, cannals, places of worship, or burying grounds have been made, or wherein mines have been sunk, which leases shall, so long as the land is duly appropriated to such purpose & the stipulated rent paid, continue in force & effect.'

When the Bengal Tenancy Act of 1885 was passed tenants were classified as 'tenureholders', 'raiyats' and 'under-raiyats'. The word 'raiyat' was, for the first time, defined as denoting

'primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family etc. etc.'

In determining whether a tenant is a raiyat the Ct is to have regard to the local custom & the purpose for which the right of tenancy had been originally acquired. Section 160 (c) protects a lease of land whereon dwelling houses have been erected by declaring it to be a 'protected interest' & the purchaser of the holding sold in execution of a decree for arrears due in respect thereof, acquires the holding subject to the interest defined as 'protected interest'. Chapter XIV in which Schedule 60 occurs was extended to Orissa by a Govt. Notn. It would thus appear that leases of land for building houses thereon were one of the 'protected interests' & treated as leases for agricultural purposes. All such lessees were treated as agricultural tenants till the passing of the Orissa Tenancy Act in 1913. But Chap. XV, Bengal Tenancy Act of 1885, dealing with Contract & Custom, had not been extended to Orissa; & Ss 181, 182 & 183 relating to servicetenures, homesteads & customs were not in force in Orissa till the passing of the Orissa Tenancy Act in 1913.

21. In the earliest settlement of the Orissa Province between the yrs 1834 & 1843 mention was made of the existence of Chandna holdings. At that settlement, known as the Bhauria settlement, a rent roll for each estate or a portion of the estate was made out, showing in detail the lands held & the rents payable by what were known as thani or residentraiyats, chandnadars, & all tenure-holders & owners of resumed lands, but giving any a lump sum assessment on lands in occupation of the proprietors or of pahi-raiyats. At the Provincial Settlement an investigation into the existence of all the tenures then prevailing in Orissa was undertaken by Govt & the characteristics of a chandna tenure are described by Maddox in para 327 of his Report, Vol I, at p. 222.

'Shopkeepers, artisans, & labouring classes who, having no arable land in the village pay rent for homesteads only, are called chandinadars and their tenure chandina. Pahiaiyats also, who having their home in one village, hold also a house or homestead in the other, are sometimes known as 'chandinadars' of the latter village. The word 'chandina' has come to be used for all homestead land paying rent separately from arable land. At the last settlement chandinadars were given leases securing to them fixity of rent for the term of the settlement, & the incidents of the tenure do not materially differ from those of thani raiyats except that they are governed by the Contract Act & not by Act X (10) of 1859. Chandina tenures have, to a great extent, merged in pahi, &, on the other hand, new chandina tenancies have been recognised, especially in patnas or villages consisting solely of homestead, & in the suburbs of towns.'

It will be noticed that no distinction is made between pahi-raiyats and chandnadars or between agricultural holdings & homesteads. The word was used for all kinds of chandnadari tenures & new chandnas consisting solely of homesteads were being created in the suburbs of towns. It may also be noted that the incidents of this tenure were very similar to those of thani raiyats. One of the incidents of thani tenure was that it was not transferable by sale or gift, but in practice it was found that thani was being freely sold both by voluntary & involuntary transfers. There were many cases of thani holdings having been sold by Civil Cts in execution of decrees & the new tenant having been recognised by the zamindar. In case of voluntary sale the zamindar usually demanded rusum. After discussing the rights of thani raiyats Mr. Maddox remarks at p. 218 of his Report as follows.

'In conclusion we may say that thani is now-a-days transferred, but that the zamindar does not record the transferee in his sherista as a. thani raiyat without a fee.'

Thani raiyats were those who had homes in the village &, from the earliest times, had been conferred protection against ejectment. All those who could prove that they had held than lands by inheritance or purchase from the holders at the last settlement, were recorded as thani, so that thani lands were sometimes in the possession of non-resident raiyats. In places thani rights had been recognised by the zamindars by allowing their raiyats their homestead free of rent, the rest of their holding being assessed to rent or revenue. The homesteads which were not assessed to rent were known as 'minha' or 'deducted' from the assessed lands. These minha lands were being freely bought & sold by custom; & sometimes, the minhas were found in possession of a person possessing no other lands in the village - See p. (sic) of Maddox's Report. The undertenants of such raiyats & the under-tenants of those under-tenants were all styled undertenants, with all the rights attaching to that status, by the extension of the application of Chap VII, Bengal Tenancy Act to Orissa. Not only raiyats but the proprietors & the sub-proprietors used to hold their houses free of rent & revenue & their houses & homesteads were known as 'khanabari'. The Orissa. Tenancy Act recognised the holders of all these homestead tenancies as a class of tenants governed by the provisions of the Act & defined) Chandnadar as

'any person holding land which had been recorded as chandna in the course of a settlement & for which a rent has been fixed for the term of that settlement.'

22. At the settlement of 1922 by Mr. Dalziel homesteads of agriculturists were recorded as stitiban & those of non-agriculturists as. chandna if they had been so recorded at the previous settlement or if they were not on lease for a fixed period, or had been described as chandnadar either in a lease or in the landlord's papers. If no such evidence was available they were recorded as pattadars. The homestead of a non-agricluturist in a permanently settled estate was recorded as 'gharari' as the status of chandna could not be given to a tenant in the permanently settled area. even when so recorded at the previous settlement, in view of the definition in the Tenancy Act.

'Some chandna holdings were recorded as 'Isthamarari' chandna but the mere fact that the word 'isthamarari' is not found in the entry of a chadnadar's status, should not be taken to imply that he is a mere tenant at will'. P. 23 of Mr. Dalziel's Report.) 'In recording tenants in the town of Cuttack care was taken to distinguish mere renters of houses from parties who held an interest in the land. The former who are known as 'bharadars' have not been recorded at all as the record prepared under the Tenancy Act is only concerned with rights in land.'

Enquiry during, the settlement disclosed that most of the urban tenants were really chandnadars.

'A few tenants, even in the urban area, were found with the status of 'stitiban' & undertenants in various degrees were recorded as dar-pattadars, dar-dar-pattadars, dar-chand-nadars - P. 44 of Dalziel's Report.'

Even in the case of leases of town Khasmahal lands transfer of which without the permission of the Collector is expressly prohibited, it was found that transfers were as a matter of fact taking place in evasion of the prohibition. The position of non-agricultural holdings is discussed at para 451 of the Report at p. 156. The Report says: 'It is both (sic) clear that in any area which has not been excluded from the Act, all occupants of land who are 'tenants' under the Act are liable to have their rents settled by the revenue officers. Some tenants in Cuttack town tried to impugn the validity of the settlement of rents of chandnadars and bajiaftidars in the urban area, & referred to H. C. rulings on the point. These rulings, however were under the Bengal Tenancy Act, whereas chandnadars & bajiaftidars are peculiar to Orissa & are specifically recognised by the Orissa Tenancy Act. Moreover, the area in question is temporarily settled. Section 119, Tenancy Act, requires that the rents of all tenants who should be re-settled at the time of re-settlement of revenue & the expression 'all tenants' must include chandnadars & bajiaftidars. Chandnadars are, of course, essentially non-agricultural tenants & bajiaftidars also, by their definition under the Act, are not precluded from being non-agri-cultural. It is clearly desirable that in temporarily settled areas the revenue authorities at the time of revenue settlement should have power to re-settle rents under their proprietors & some inconvenience is caused by the fact that many tenants in urban areas are pattadars, whose rents cannot be touched by the revenue authorities. From this point of view, it would be convenient if chandna status could be given to all non-agricultural tenants in temporarily settled estates & their rents fixed at the time of revenue settlement........I think that some sort of chandna status should be open to non-agricultural tenants in the permanently settled estates, as to their counterparts in the temporarily-settled estates ,not of course as implying that the rents should be settled at the time of the revenue settlement, but that they should be recognised as tenants under the Act, & their rents be liable to be dealt with under Schedule 23'.

23. I have quoted these extracts from Settlement Reports in order to show that lease of homestead lands, both in urban & rural areas was a fairly common practice & that the tenants of homestead lands were a special class, treated as agricultural tenants by the Orissa Tenancy Act, irrespective of whether such tenants held their homesteads as raiyats or otherwise. These tenants in their turn, created under-tenants by sub-leasing their homesteads or otherwise parting with a part of their leasehold. It was necessary, as, in fact, it was recommended by the settlement officer, that some sort of chandna. status should be given to those tenants so that they may be protected from arbitrary eviction, and their rights in respect of their holdings, may be more precisely defined.

24. On the other hand, there were decisions of the highest Cts regarding the nature of these tenancies which were neither uniform nor consistent. In 'Chintamoni v. Sriram Chandrakar', AIR (21) 1934 Pat 422: (149 IC 805), it was held that a chandna right is not transferable except on proof of local custom or usage. The suit was filed for ejecting a purchaser from a chandnadar & the ground for ejectment was that the chandnadar had abandoned his tenancy. But it was laid down that if the person who has acquired by purchase is described in the Record-of-Rights as a chandnadar, the onus is cast on the person who attempts to eject him, of proving local usage which rebuts the entry in the Record-of-Rights. It would appear therefore that if the Settlement Record registered a transferee from a chandnadar as a chandnadar, the onus would be on the pltf seeking to eject him to rebut the correctness of that entry. In S. A No 156 of 1937 it was assumed that a darchandna is not transferable as a chandna is not. This case has not been reported but a short note of the decision appears in 'Dulai Dei v. Chema Das', the Notes portion of 8 Cut L. T. 6. In 'Surya Mal v. Sriram Naidu', AIR (26) 1939 Pat 158: (18a IC 298), it was held that a darchandnadar is not an under-raiyat within the meaning of the Orissa Tenancy Act. In 'Sarat Chandra v. Jamuna Prasad', AIR (32) 1945 Pat 289: (24-Pat 263), it was held that a suit for rent against a chandnadar would lie in the Revenue Ct only. It would therefore appear that while Govt. regarded all persons in occupation of homesteads as 'tenants' within the meaning of the Orissa Tenancy Act & settled their rents accordingly, the course of judicial decisions indicates that the incidents of chandna tenancy were indefinite & precarious. In none of the reported cases was custom or usage proved. The time was ripe for the Legislature to step in in order to define the law applicable to homesteads, and rescue those tenures from the obscurities of custom & usage.

25. The Legislature therefore amended Schedule 36 so as to secure all tenants in occupation of homesteads & declared that the incidents of their tenancy shall be 'regulated by the provisions of the Act applicable to occupancy raiyats'. The Legislature thereby engrafted upon existing, leases an enactment the object of which was to confer occupancy status on all tenants of homestead & do away with proof of custom. It has to be remembered that in 1938 occupancy holdings had been made transferable by legislation. In Bengal the law had been amended in 1928 by enacting that

'an under-raiyat is not liable to be ejected. if he is in possession of his land for a continuous period of 12 yrs, or had a homestead thereon. 'See proviso to Schedule 8 C.'

The object of the Orissa Legislature was also to achieve the same result, viz., to prohibit the ejectment of a tenant from a homestead. It is the function of the interpreter to ascertain the legislative intent & see whether the language employed is sufficiently expressive; of it. Sub-section (1) of Schedule 36 as amended by Act X (10) of 1946 reads as follows:

'(1) Notwithstanding anything in this Act the incidents of tenancy of any tenant, including the holder of a service tenure, in respect of the homestead in which such tenant ordinarily resides, shall be regulated by the provisions of this Act applicable to land held by an occupancy raiyat. Provided that if his homestead is held as a service tenure or part thereof & the holder of such tenure ceases to perform the service, he shall be liable to pay such rent for the occupation of the homestead as may be determined by the Collector on an application filed either by the landlord or by the holder of such tenure'.

Explanation: A chandnadar is also a 'tenant within the meaning of this section'. Orissa Act XXXII (32) of 1947.'

The difference between a 'tenant' & a 'raiyat' is that the former holds lands while the latter holds lands for cultivation. A person who holds land for building houses thereon is therefore a 'tenant' under the Act. The expression 'any tenant' quoted above is a catch-all phrase & takes in all tenants of homestead lands. The incidents of tenancy of such tenants are declared to be regulated by the provisions of the Act applicable to land held by an occupancy raiyat. A phrase may be known by the company it keeps. The expression 'incidents of tenancy' is to be found in the previous Tenancy Acts & in the Settlement Reports. The same expression is used in Chap III dealing with tenures & in Chap V dealing with occupancy-raiyats owhich is divided into several parts with distinct headings such as 'General' Incidents of oOccupancy Right', 'Enhancement of Rent', Reduction of Rent' & 'Commutation'. The fascicule of Ss 27 to 31 B appear under the heading 'Incidents of Occupancy Right' which may be regarded as a preamble to these Sections. Section 30 A which deals with transfer of Occupancy holdings was in force at the time of the amendment of Schedule 36. On a plain reading of Schedule 36, therefore, I am of opinion that one of the incidents of tenancy of any tenant in respect of the homestead in which, such tenant ordinarily resides, is the incident of transferability conferred by Schedule 0 A. This right of transfer was, however, expressly negatived in the case of a service tenureholder as Schedule 35 was amended by the same Amending Act, & the restriction on the right to transfer or bequeath was retained, as before, though the protection against ejectment was conferred by Schedule 36 (1) by the use of the words 'including the holder of a service tenure'. The resultant effect of the amendment of these two sections is that any tenant, including the holder of a service tenure, is immune from ejectment from his homestead, & the incidents of his tenancy shall be regulated by the law applicable to an occupancy raiyat. Sections 29 & 57 lay down the grounds on which an occupancy raiyat & an under raiyat respectively may be ejected. A tenant other than a chandnadar or an occupancy raiyat, & some other classes of tenants mentioned in Schedule 5 could be ejected by a suit for arrears of rent. It was argued that all the provisions applicable to an occupancy raiyat such as enhancement of rent, reduction of rent, communication etc. cannot apply to the tenant of a homestead, & consequently the right of transfer cannot attach to a homestead tenure. That is precisely the reason why the Legislature has deliberately used the expression 'Notwithstanding anything in this Act' in the opening portion of the amended Schedule 36 (1) & also the word 'regulate' in delimiting the extent of the applicability of the provisions. To regulate is to adjust; to direct by rule or restriction; to subject to governing principles or laws - (Bouvier). In other words, the tenant & undertenant of a homestead can be ejected hereafter only on grounds on which raiyats & underraiyats could be ejected before the amendment. I am, therefore, unable to accede to this contention & regard the amendment as unworkable.

26. It was next argued that as a dar-chandnadari right is not transferable, deft 1 cannot be regarded as a tenant, & that as deft 2 had transferred his right to deft 1 before the amendment of Schedule 36, he ceased to be a tenant, & that therefore both are no better than trespassers. This argument involves a doubtful assumption & a wrong conception.

27. The assumption that a darchandnadari whether it is so or not would depend upon whether the chandna right itself is transferable or not. It is well settled that the incidents of such subtenancy would depend upon the nature of the original tenancy - See 'Abdul Karim v. Abdul Rahman', 15 CLJ 672: (13 IC 364); 'Babu Rama - Roy v. Mohendranath', 8 C W N 454; Ramapada v. Atore Dome', AIR (12) 1925 Cal 202: (84 IC 743); 'Krishnakanta v. Jadu Kasya', 28 IC 839: (AIR (3) 1916 Cal 32). An under-tenant of the homestead of a raiyat has therefore been held not liable to be evicted & is protected by Schedule 36 - 'Kandhuri v. Arjun', 1 Pat 161: (AIR (9) 1922 Pat 416). As early as 1869 Sir Barnes Peacock C. J. held that a tenure granted for building purposes is transferable in the absence of any evidence to the contrary . The learned C. J. observed:

'I know of no law which prohibits a man who gets land for the purpose of building from assigning his interest in it to another. By assigning his interest he does not necessarily get (sic) of his liability to pay rent. The tenant who assigns his interest does not in my opinion commit such forfeiture of his rights as to entitle the lessor to treat such rights as altogether non-existent & to turn him out of possession' - Banee Madhub v. Joykishen, 12 WR 495.'

A lease is normally assignable, in the absence of a custom or usage to the contrary. The fact that in ordinary leases of agricultural land the right of occupancy or non-occupancy right is not transferable by law, leads people to believe that leases of homesteads are also nontransferable. Though a chandna holding is treated as a lease for agricultural purposes, the right of a chandnadar to transfer was not specifically provided for by the Orissa Tenancy Act. A chandnadar is defined as including also the successor in interest of such a person. Succession to a person is not the same thing as the successor in interest of that person. The latter expression would include an heir as well as a transferee. I am therefore inclined to think that a chandna right is transferable & a darchandna right is equally so in the absence of proof of a custom or usage or contract to the contrary. Deft 1 became a tenant by virtue of the assignment in his favour by deft 2. The word 'tenant' is to be understood in its generic sense as including any person who is liable to pay rent & who holds land under another person. This in fact is the definition of the word 'tenant' as given in the Act.

28. The answer to this argument is also to be found in S. of the Amendment Act X (10) of 1946 which is headed 'Application to pending -suits & proceedings' & which reads as follows:

'Any suit for the ejectment of any tenant, including the holder of a service-tenure, instituted before the commencement of this Act, or any execution proceeding arising therefrom, shall be disposed of as if Schedule 36, Orissa Tenancy Act, 1913, as amended by this Act, had been in force at the time of the institution of the said suit in the Ct of the first instance.'

This section is retrospective in its operation & affects all pending suits & proceedings in execution. The suit, in the present case, was laid for the ejectment of deft 2 on the ground that he had transferred the holding without the consent of the landlord. Although he had transferred the holding, it cannot be said that he ceased to be a tenant from that very moment, until he was actually evicted in execution of a decree in ejectment his tenancy continues. As a result of the transfer, the privity of estate between him & the landlord is assigned. The transferee becomes liable for the rent by reason of his getting possession of the estate. Section 100, Tenancy Act says that 'no tenant shall be ejected from his tenure or holding except in execution of a decree'. To regard a tenant who has transferred his holding - assuming it to be non-transferable - as a trespasser from the date of his transfer would be to put restrained construction & the reverse of a liebral one. All that can be said in such a case is that he incurs forfeiture for breach of a condition of the tenancy but if the breach is capable of being remedied the forfeiture can foe relieved against. I can find no support either in the T. P. Act or in the Tenancy Act itself for the proposition that the moment the lessee violates a provision of the lease he becomes a trespasser & ceases to be a tenant. I cannot conceive of any suit for ejectment of a tenant unless he has violated some condition of the tenancy. To read the clause 'any suit for the ejectment of a tenant' occurring in Schedule as being applicable only to a person who was a tenant complying with all the conditions of the tenancy would be to confine to the letter of the enactment and not to the spirit, & would be sacrificing good sense to technicality.

29. The Act, as a whole, is declaratory & remedial. It declares the law applicable to homesteads in Schedule as the law that was then applicable to occupancy raiyats . It is remedial in the sense that it removes uncertainties in the tenure of homestead tenants & declares the law that has to be applied in future. It does not purport to reopen proceedings that had already been closed but has been specifically made applicable to pending proceedings. It undoubtedly affects the existing rights of persons & is retroactive in its scope. The Act should therefore, be so construed as to extend the provisions to all cases within the reason of the rule. The repeated use of the words any tenant' in both Schedule (sic) leads me to think that the words are large enough to embrace such cases as the present & are within the mischief intended to be dealt with in the Act. It is by no means unusual, in construing a remedial statute, to extend enacting words beyond their natural import & effect in order to include cases within the mischief - See 'Dean and Chapter of York v. Middleborough', (1827) 148 ER 888: (2 Y & J 196). In 'Wright v. Person', (1869) 4 QB 582: (38 LJQB 312), a case under the Dogs Act of 1869, the word 'cattle' was interpreted to include horses, pigs & mares as they could also be bitten by dogs. The Act, in my opinion, embraces not only tenants but also their assignees & protects them from eviction provided ejectment has not been carried out & a suit or execution proceeding for such eviction is still pending on the day the Act came into force. Such a provision was necessary to quiet titles which had been made insecure, as a result of diversities in judicial decisions & the changes in law relating to homesteads that were taking place with the growth of the community & its concerns. There is no rule that when a person has commenced an action he has a vested right in the then state of the law - 'Hurst v. Hurst', (1882) 21 Ch D 278: (51 LJCH 729) & 'A. G. v. Thobald', (1890) 24 QBD 557 at p. 560: (62 LT 768). In 'Quilter v. Mapleson', (1882) 9 QBD 672: (52 L J Q B 44), relief against forfeiture in an action in ejectment was sanctioned by the Ct of Appeal although, when the action was before the Ct of the first instance ,the new statute had not come into operation. Great weight is to be attached to the fact that the Act was designed to protect the public interest & was remedial in its object. As was observed in 'Pardo v. Bingham', (1869) 4 Ch 735: (20 LT 464), we must look to the general scope and purview of the statute & the remedy sought to be applied, & consider what was the former state of the law & what it was that the Legislature contemplated. But quite apart from interpretation the language of Schedule clearly affects the existing rights of landlords. It necessarily follows that the existing breaches of covenants & existing obligations incurred thereby are also affected by the Act. If the landlord had the right to eject he cannot enforce it. If deft 1 had committed a breach of any of the covenants of the lease, he does not incur the liability of forfeiture or eviction. The Act applies to leases made before the Act. Can it be said that it does not apply to breaches committed before the Act? It applies to all breaches so long as the landlord has not obtained possession. The Legislature did not want to discriminate between tenants whose rights were under challenge at the time the Act was passed & those whose rights may thereafter be challenged. I see no reason why the interpretation of the Act should be confined to breaches committed after the Act - See 'Raghu Raj Singh v. Harikishen', AIR (31) 1944 PC 35: (ILR (1944) Kar PC 199) and 'Syamakanta v. Ram Bhajan', AIR (26) 1939 FC 74: (ILR (1939) Kar 165). Supposing deft 2 had transferred his interest one day after the Act. He or his assignee would clearly be protected against eviction. If he had done it a day before the Act, could it be said that the Legislature intended to exclude him from the protection? If, again, deft 2 had transferred only a portion of his interest he would nonetheless continue to be tenant, but according to the argument of the resp if he had transferred the whole of his interest he becomes a trespasser. Section 4 means that all the proceedings which were pending on the day the Act came into operation are to be treated as having been commenced after the Act came into force. That is the only meaning that can be attached to the expression

'as if it had been in force at the time of the institution of the suit in the Ct of the first instance.'

The Legislature intended to remove difficulties of proof, no less than to introduce a law intrinsically better. If the pltf had filed his suit one day after the Act, he would be clearly hit by the Act: if he had filed it one day before the Act, Schedule would apply & he would be equally hit by the Act. The same view has been adopted by D.B. of the Patna H. C. in 'Brajsundar Deb v. Giridhari Behera', 13 Cut L T 66.

30. It was argued, however, that the Orissa Tenancy Act itself does not apply to a lease like the one which is the subject-matter of the present suit. As I have already pointed out, leases of homestead lands have been a peculiar feature of the tenancy law of Orissa, & the interest created in land on which dwelling houses stand, known as the chandna right, has been the subject-matter of tenancy legislation. Leases of such land are, in my opinion, excluded from the operation of the T. P. Act being leases for an agricultural purpose. Agriculture should not be confounded with cultivation. Land, though not cultivated, may yet be the subject matter of agriculture when held by a tenant. Such leases may be made orally & in the absence of proof of custom or usage to the contrary, the English rule based on natural justice, equity and good conscience, that every lease is assignable, will apply. I am, therefore, unable to accede to the argument of Mr. Mukherji, learned counsel for the resp, that the Amendment Act X (10) of 1946 is 'ultra vires' the Provincial Legislature as it affects transfer of non-agricultural lands. Learned counsel had ultimately to concede that, having regard to item 21 in the Provincial List of the Government of India Act, the Provincial Legislature was competent to regulate the relations between landlord and tenant and Schedule 36 did not affect transfer of land as such.

31. Even if the majority view in this case were to prevail the pltf cannot succeed in the absence of proof of custom or usage that he is entitled to evict. It is the admitted case of both parties that deft 2 could transfer with the consent of the landlord. Whether a violation of this covenant would entail eviction is a matter for proof. The pltfs have adduced no evidence to show that by the mere act of transfer by deft 2, they acquired the right to evict. Irrespective of the provisions of the Amendment Act X (10 of 1946,) I am therefore, of the view that the pltfs suit should be dismissed. I would accordingly allow the appeal with costs.

Narasimham, J.

32. I have read with great care the judgments of my learned brothers Das J. and Panigrahi J. & I am of the opinion that the appeal must be dismissed with costs.

33. The dispute here is between the transferee of the Darchandnadar on the one hand & the Chandnadar on the other. The Darchand-nadar was also impleaded as deft 2; but he allowed the suit to proceed 'ex parte' & did; not contest the judgment of the trial Ct either before the lower appellate Ct or before this Ct in second appeal. Consequently so far as. the Darchandnadar is concerned, the decree of the two subordinate Cts is final. It is necessary to emphasise this aspect of the case in dealing with the various questions of law that were argued at great length before us.

34. The transfer by the Darchandnadar in favour of the applt took place on 30-6-45. As the law then stood, even a Chandnadar had no transferable interest in his chandna holding except by custom (See 'Chintamoni v. Sri Ram Chandra Kar', AIR (21) 1934 Pat 422: (149 IC 805) and 'Mt Haliman Bibi v. Mohd. Tajamul Hussain', AIR (26) 1939 Pat 504: (185 IC 250). The position of a Darchandnadar was no better and in 'Dulai Dei v. Chema Das', S. A. 155/3? (8 Cut L. T., notes 6) Fazl Ali J. (as he then, was) pointed out that a Darchandnadar cannot transfer his right. The lower appellate Ct, therefore observed 'it is a settled principle of law that a Darchandnadari right is neither transferable nor heritable'. In the grounds of appeal before this H. C. this view of the law of the lower appellate Ct was not expressly challenged & the main ground taken was that, whatever might have been the law formerly, a Darchandnadar or his transferee could not be evicted from his homestead where he ordinarily resides by virtue of the amendments made to Schedule 36, Orissa Tenancy Act by Orissa Acts X (10) of 1946 & XXXII (32) of 1947. It may therefore be taken as well established that on, 30-6-45 when the Darchandnadar (deft 2) transferred his right to the applt he had no transferable interest in the land & consequently such a transfer would not bind the landlord, namely, the resp Chandnadar who was entitledto treat the transferee as a trespasser & the tenancy land as having been abandoned.

35. Therefore the sole point for consideration is whether by the two amendments made to Schedule 36, O. T. Act the applt can claim occupancy rights including the right of non evictability. For the purpose of the present discussion it may be assumed that the applt ordinarily resides in the disputed land which is admittedly a homestead containing a residential house. The texts of the two amendments made to the O. T. Act in 1946 & 1947 havebeen quoted in the judgment of my learned brother Das J. & I need not therefore quote them once again. By those amendments the Legislature conferred on any tenant the samerights in that portion of his homestead in which he ordinarily resides as are conferred by the O. T. Act on an occupancy raiyat in his holding. The expression 'tenant' has been defined in Schedule (23) as below:

''tenant' means a person who holds land under another person & is or but for a special contract would be liable to pay rent for that land to that person.'

The word 'holds' occurring in that section is very important. Every person whether a trespasser or not in possession of the land belonging to a landlord would not necessarily become his tenant merely because he is willing to pay rent on his part, conveys an idea that there must be either a contract of tenancy, express or implied or relationship of landlord & tenant brought about by the operation of law. I have already shown that a Darchandnadar had no transferable interest in 1945 in his land & consequently any transfer made by him would not be binding on the landlord who was entitled to treat him as a trespasser. In the present case it is not alleged that the resp landlord gave his consent to the transfer nor is there any material on record for holding that there was any such implied consent by the resp to the applt becoming his tenant. Consequently the transferee of a non-transferable interest cannot by any stretch of imagination be said to 'hold' land under the landlord of the transferor. Therefore the applt not being a 'tenant' within the meaning of the O. T. Act cannot claim the benefit of Schedule , Orissa Tenancy (Amendment) Act, X (10) of 1946.

36. The next question is regarding the precise extent of the retrospective effect given to the Amending Act X (10) of 1946 by Schedule of that Act. My learned brother Panigrahi J. seems to have taken, the view that that Act is declaratory & remedial in nature & that it should be given full retrospective effect so as to apply to a transfer made by a Darchandnadar prior to the commencement of that Act. He has relied on certain observations contained in Maddox settlement Report at pp 222, 218 & 311 & also on the observations of Mr. Dalziel in his Settlement Report at pp 23, 44 & 159. From these observations he seems to have drawn the inference that all lessees or under-lessees of homestead lands whether in urban or rural areas were treated as tenants & that the Settlement authorities recommended that they should be given some sort of chandna status so that they may be protected from arbitrary eviction (para 9 of his judgment). (Para 23 of this report). He had then referred to the various decisions of the Patna H. C. reported in 'Suryamal v. Sriram Naidu', AIR (26) 1939 Pat 158: (180 IC 298) and 'Sarat Chandra v. Jamuna Prasad', AIR (32) 1945 Pat 289: (24 Pat 263) dealing with nature of chandna tenancies & drawn the inference that those decisions were neither uniform nor consistent. He then concludes:

'It would therefore appear that while Govt regarded all persons in occupation of homesteads as 'tenants' within the meaning of the O. T. Act & settled their rents accordingly, the course of judicial decisions indicates that the incidents of chandna tenancy were indefinite & precarious.' (Para 10). (Para 24 of this report).

With great respect I must point out that a close scrutiny of the extracts from the two Settlement Reports would not support the view that the Govt regarded all persons in occupation of homesteads as 'tenants' within the meaning of the O. T. Act. In Dalziel's Settlement Report the position of homestead tenants in urban areas was fully discussed in para 451 at p. 159 & it was recommended that the O. T. Act may be applied to them & chandna status conferred on such tenants. But he was obviously considering the case of tenants under proprietors as will be clear from the following passage:

'It is clearly desirable that in temporarilysettled areas the revenue authorities at the time of revenue settlement should have power to resettle the rents of the 'tenants under the proprietors' & some inconvenience is caused by the fact that many tenants in urban areas are pattadars, whose rents cannot be touched by the revenue authorities.'

The words underlined (here in inverted commas) are very significant. The settlement authorities were considering the status of lessees under proprietors in urban areas & they were not at all concerned with under-lessees in general or the limited question which arises in this case, namely, lessees under Chandnadars. The position of a lessee under a Chandnadar was not discussed in any of the Settlement Reports & apart from a mere statement to the effect (at p. 44 of Dalziel's Settlement Report) that they were recorded as Darchandnadar & Dar-darchandnadar there is absolutely no observation about their status or their incidents of tenancy. The observations of Mr. Dalziel at p. 159 have therefore absolutely no bearing on the present case. He was concerned with the position of some homestead tenants in urban areas who were recognised as Chandnadars on the one hand & some other lessees from the proprietors who were recorded as pattadars & who were governed by the T. P. Act. He clearly recognised that even in urban areas the T. P. Act would apply in respect of some homestead leases & he pointed out the confusion that arose by the application of two different Acts to two different types of homestead leases in urban areas.

'By the application of the Act to Cuttack town the statuses in the urban area are some-what confused. Some tenants are pattadars or lease-holders, governed by the T. P. Act, while others have various statuses under the Tenancy Act - chandnadars, bajiaftidars or settled raiyats.'

The report of Mr. Dalziel was submitted to his superior, namely, the Govt & his recommendation about conferment of chandna status to all non-agricultural tenants in temporarily settled estates was based on the fact that the definition of the word 'chandnadar' as given in Schedule (3) practically left it entirely to the discretion of the Settlement Officer to confer chandna status on any such tenant. Therefore whatever might be the origin of the tenancy, if a Settlement Officer in the course of settlement of revenue, records a person as a chandnadar he gets the chandna status & the Settlement Officer was anxious to justify his action before his superior so that it may not be criticised as being purely arbitrary. But his report has nothing to do with the status of sub-lessees under chandnadars & the Tenancy Act did not confer on a Settlement Officer any discretion to confer chandna status on such sub-lessees.

37. Similarly the various Patna decisions cited in the judgment of my learned brother Panigrahi J. if carefully scrutinised will show that there was nothing indefinite or precarious as regards the incidents of chandna tenancy. It is true that in 'Chintamoni v. Sriramachandra Kar' AIR (21) 1934 Pat 422: (149 IC 805) & 'Mt. Haliman Bibi v. Mohd. Tajamul Hussain', AIR (26) 1939 Pat 504: (185 IC 250), it was held that a chandna tenancy is not transferable except by custom. But in 'Johabaj v. Sri Krishna', 1936 Pat 29: (15 Pat 187 F B), a Pull Bench made it absolutely clear that a chandna tenant was not a mere tenant at-will & that if his landlord claimed the right to eject him the burden of proving such right by local usage or custom rested on the landlord & not on the chandna tenant. Thus these decisions recognised some sort of permanent right in a chandnadar and shifted on his land-lord the burden of proving the customary right to evict him. Doubtless all the decisions assumed that a chandna tenancy was not transferable except by custom. But this view does not in any way make the incidents of chandna tenancy indefinite or precarious because even occupancy raiyats prior to 1939 had no unrestricted right of transfer. I am therefore unable to understand how it can be held that there was, as it were, a conflict between revenue authorities who wanted to confer permanent status on all tenants of homestead lands & the decisions of the Patna H. C. which made such tenancies indefinite or precarious. The law was well-settled & clear.

38. When the Legislature passed the Amending Act of 1946 it deliberately changed the law & conferred occupancy rights in the homestead of all tenants under the O. T. Act by Schedule of that Act. There was no question of passing any declaratory Act with a view to remove any ambiguity as regards the incidents of chandna tenancy as has been thought by my learned brother Panigrahi J. The Legislature fully knew the existing law regarding the rights of a chandna tenant & deliberately made a change affecting vested rights in their future operation & conferring occupancy rights in the homestead of all tenants. This was done in pursuance of a well declared policy & I fail to see how Schedule of the Amending Act of 1946 can ever be said to be of a declaratory nature so as to have retrospective effect by its own force. On the other hand, as it affects vested rights prima facie, it would be prospective in nature. Doubtless some limited retrospective effect was given to that Act by Schedule in respect of pending proceedings but the opening words of that section are 'in a suit for the ejectment of any 'tenant'......instituted before the commencement of this Act'. The word underlined (here in inverted commas) shows that the limited retrospective effect given by that section was restricted only to those persons who were 'tenants' within the meaning of the O. T. Act at the time of the institution of suits for their ejectment. In the present case the suit was brought on 5-9-45. Deft 1 was then a mere trespasser in the eye of the landlord (pltf) because he was a transferee of a non-transferable holding. It is true that deft 2 was also impleaded as a party in that suit & he being the Darchandnadar of the pltf may under some circumstances claim to be a 'tenant' within the meaning of the O. T. Act. But no relief was claimed against him & in fact he allowed the suit to proceed 'ex parte'. Consequently so far as deft 1 is concerned the suit was against a trespasser & it is difficult to see how Schedule of Act X (10) of 1946 could help him. In the judgment of my learned brother Panigrahi J. (if I may say so with great respect) the fundamental distinction between a suit brought by a Chandnadar against a Darchandnadar on the one hand & a suit brought by a Chandnadar against a transferee of a Darchandnadar (the transfer having taken place prior to the commencement of Orissa Act X (10) of 1946) has been overlooked.

39. There is no doubt, as pointed out by my learned brother Das J., that the expression 'tenant' as denned in Schedule (23), O. T. Act is more comprehensive than the expression 'classes of tenants' which classes have been enumerated in Schedule , O. T. Act. For instance, it may include a 'bhagchasi' of the 'nijchas' or 'nijjot' lands of a proprietor & if such a tenant has his residential house in a small plot of homestead he may get the benefit of the Amending Act of 1946. But a prior transferee of a non-transferable right was & continues to be merely a trespasser. Doubtless after the coming into force of the 1946 Act there can be no question of any non-transferable right so far as the homesteads of the tenants under the O. T. Act are concerned & any transfer made after that date might give the transferee also the same occupancy rights as the transferor was given by that Act. My learned brother Panigrahi J. seems to consider this to be an anomaly (see the last part of para 15 of his judgment, Para 29 of this report). But it is difficult to conceive of any anomaly when an Amending remedial Act confers new rights as respects transfers made after the coming into force of that Act & does not confer such right on transfers which took place prior to its commencement. But in giving retrospective effect to that Act Ct cannot go beyond the limits prescribed by Schedule .

40. For the purpose of deciding this appeal it is unnecessary to consider whether a Dar chandnadar is also a 'tenant' within the meaning of the O. T. Act. But as this question has been argued at great length I think it advisable to give my views. Chandna holdings are undoubtedly non-agricultural holdings as will be clear from a scrutiny of the relevant passages of Maddox's Settlement Report & Dalziel's Settlement Report which have been quoted at some length in the judgment of my learned brother Panigrahi J. But a Chandnadar may sub-let his chandna holding either for agricultural or horticultural purposes or for building purposes. In the former case the Darchndnadar may become a 'tenant' within the meaning of the O. T. Act. But if the Chandnadar sub-lets his chandna holding or a portion thereof for purely non-agricultural purposes such a Dar-chandnadar cannot be a 'tenant' within the meaning of the O. T. Act. The reason is obvious. Prior to 1913 most of the provisions of the Bengal Tenancy Act were in force in Orissa & the provisions of the T. P. Act were also in force. Chapter V, T. P. Act while dealing with the law relating to landlord & tenant expressly excluded leases for agricultural purposes from the provisions of that chapter (See Schedule 17). So far as the Bengal Tenancy Act is concerned, it is now well settled that it does not apply to lands let out for non-agricultural purposes (See 'Judoonath v. Schoene Kilburn & Co', 9 Cal 671: (12 CLR 343); 'Umarao Bibi v. Mohd Rojabi', 27 Cal 205: (4 OWN 76). The O. T. Act which was passed in 1913 is merely a re-enactment of most of the provisions of the Bengal Tenancy Act with slight modifications here & there to suit the peculiar conditions prevailing in Orissa. New classes of tenants such as Chandnadar & Bajiaftidar were undoubtedlyincluded in the O. T. Act & to the limited extent of such inclusion the Orissa Act expressly embraces within its scope purely non-agricultural tenancies. The O. T. Act received the sanction of the Governor-General in Council under Schedule , Indian Councils Act of 1892 & consequently to the extent of the express provisions contained therein it would override the provisions of Chap V, T. P. Act. But there seems to be absolutely no basis for further extending the O. T. Act to leases for nonagricultural purposes. If a Chandnadar sublets his holding for a non-agricultural purpose to a Darchandnadar the relationship between him & the Darchandnadar must be regulated by the T. P. Act in view of Schedule 17 of that Act. It is true that after the passing of the Government of India Act, 1935 even the Provincial Legislature has the power to make laws regulating leases of non-agricultural lands. This is a subject in the concurrent Legislative List (Item 8 of Part I of List III). But if such a law is inconsistent with any provision of the T. P. Act then unless it is assented to by the Governor-General under Schedule 07 (2), Government of India Act 1935, it would be void to that extent. In the present case neither the Orissa Act X (10) of 1946 nor the subsequent Amending Act XXXII (32) of 1947 received the assent of the Governor-General. This indicates unmistakably that when the Legislature made the amendments to Schedule 36, O. T. Act it was confining itself to leases of agricultural land. Even if it purported to include leases of non-agricultural lands the Amending Act cannot prevail over the provisions of Chap. V, T. P. Act so far as leases for non-agricultural purposes are concerned.

41. Therefore, I would take the view that if a Darchandnadar lease was made for agricultural purposes such a Darchandnadar may be a tenant within the meaning of the O. T. Act tout if such lease is purely for non-agricultural purposes the Darchandnadar will not be a tenant under the O. T. Act & consequently will not be entitled to the special protection conferred by the two Amending Acts of 1946 & 1947.

42. I have already referred to some passages in the judgment of my learned brother Panigrahi J. with which with great respect, I am unable to agree. There are also some other passages with which I am constrained to express dissent though with great respect. In para 14 (Para 28 of this report) he has observed :

'I can find no support either in the T. P. Act or in the Tenancy Act itself for the proposition that the moment the lessee violates a provision of the lease he becomes a trespasser and ceases to be a, tenant.'

So far as the tenants under the O. T .Act were concerned, there was no doubt about the proposition that if a tenant of a non-transferable holding transfers his holding without the consent of the landlord the transferee is a mere trespasser & the landlord could proceed to take possession of the holding as if it had been abandoned. This proposition was well established by the various decisions under the old Bengal Tenancy Act & the O. T. Act & it is too late to doubt it. It would only quote the observations in 'Chintamoni v. Sriramchandra Kar', AIR (21) 1934 Pat 422: (149 IC 805).

'But in this suit the landlord is not ejecting the chandnadar, but the purchasers who are trespassers. The ground of the suit is that the chandnadar has abandoned his tenancy, & that, since his tenancy was not transferable notenancy now intervenes to prevent the landlord from re-entering into direct occupation of the land.'

That the Legislature was fully aware of this, right of the landlord to evict the transferee of a non-transferable holding will be clear from a scrutiny of Schedule 1 B (1), O. T. Act as Amending Act of 1938. Prior to that amendment even occupancy holdings were not freely transferable unless the landlord's consent was obtained by payment of mutation-fee. That Act doubtless abolished the payment of mutation-fee & dispensed with the consent of the landlord. By Schedule 1 B the Legislature gave retrospective effect, to that amendment in respect of unrecognised transfers that had taken place prior to the coming into force of that Act. In Sub-section (1) of Schedule 1 B the Legislature took away the right of the landlord to eject the pre-1938 transferee on the ground that he had not given his consent to the transfer. The implication of this section is obvious. But for the express provision contained therein the landlord could have successfully instituted a suit for ejecting a. pre-1938 transferee on the ground that he had not given his consent to such transfer. Thus, apart from judicial decisions, there is a clear statutory recognition of the position that in. the eye of a landlord the transferee of a nontransferable tenancy under the O. T. Act is a mere trespasser & the landlord could successfully bring a suit for his eviction unless of course it is barred by express satutory provisions or by custom.

43. At the end of para 13 (Para 27 of this report) of the judgment of my learned brother Panigrahi J. he has observed:

'A Chandnadar is defined as including also the successor-in-interest of such a person. Succession to a person is not the same thing as. the successor-in-interest of that person. The latter expression would include an heir as well as a transferee. I am therefore inclined to think that a chandna right is transferable & a darchandna right is equally so in the absence of proof of accustom or usage or contract to the contrary.'

Even if it be assumed that the expression 'successor-in-interest' would include a transferee, the mere definition of a Chandnadar in Schedule (3) as including his successor-in-interest does not necessarily make such a tenancy transferable. The transferability must depend on the other provisions of the O. T. Act & so far as a Chandnadar is concerned the only other relevant provision is Sub-section (2) of Schedule 36 which expressly says that incidents of tenancy of a Chandnadar shall be regulated by local custom & usage. My learned brother Panigrahi J. has himself recognised transferability to be an incident of tenancy (Para 11, Para 25 of this report) & consequently the right of a Chandnadar to transfer his holding can arise only by proof of local custom or usage & it cannot be inferred from the definition contained in Schedule (3). The danger of inferring transferability from the mere fact that the definition of a particular class of tenants is inclusive of his successor-in-interest will be apparent if the definition of the expression 'raiyat' in Schedule (2), O. T. Act is scrutinised. In that sub-section a raiyat has. been defined as including his successor-in-interest. But merely because of this definition it was never contended at any time that a raiyati interest was necessarily transferable. Such transferability was conferred only by the other sections of the Act such as Sections 30 A & 31. The Legislature found it necessary to insert those sections by the Amending Act of 1938 (Orissa Act VIII (8) of 1938) because prior to the passing of that Act a raiyati interest was not freely transferable notwithstanding the definition given in Schedule (2). A similar definition of the word 'raiyat' was given in the Bengal Tenancy Act when, it was enacted in 1885. But it was never disputed that till the passing of the Amending Act of 1928 & the insertion of new sections (Ss. 26 to 26 J.) to that Act a raiyati interest was not transferable except on proof of custom. I must therefore with great respect, dissent from the view that merely because the definition of a Chandnadar includes his successor-in-interest a chandna tenancy must be held to be transferable.

44. In para 17 (Para 31 of this report) of his judgment, my learned brother Panigrahi J. seems to have cast on the pltf the burden of proving custom or usage entitling him to evict the applt. There is however no authority for such a proposition. The pltf is the Chandnadar landlord & it is well settled that in any suit brought by a landlord for eviction the burden, in the first instance rests on the landlord to prove his title as landlord but once this is either proved or admitted the burden shifts on the deft to show that his tenancy is not precarious but that it entitles him to continue in occupation. This principle is based on several English decisions & also on 'Nainapillai v. Ramanathan', 47 Mad 337: (AIR (1.1) 1924 PC 65) which have been referred to in the F. B. decision of the Patna H. C. reported in 'Johabaj Khan v. Sri Krishna De', AIR (23) 1936 Pat 29: (15 Pat 187 FB). In the present case the pltf's position as Chandnadar is unchallenged. The plea taken by deft 1 was that the Darchandnadar (deft 2) had a permanent right by virtue of long possession of over 40 yrs. No question of any transferable right of a Darchandnadar by custom or usage was even, alleged. The trial Ct disbelieved the deft's story of possession for more than 40 yrs. The burden of proving non-evictability either on the ground of acquisition of permanent tenancy through possession over a long period or on the ground of custom or usage must obviously lie on the deft. It is true that in 'Johab v. Sri Krishna', 1936 Pat 29: (15 Pat 187 FB), the Pull Bench held that so far as chandna tenancy was concerned the burden of proof of custom of evictability would shift on the landlord by virtue of the special implications arising out of Schedule 4, O. T. Act. But there is absolutely no justification or authority for extending this principle to a Darchandnadar much less to the lessee of a Darchandnadar.

(By the Court): In accordance with the majority view the order of the Ct is that the 2nd appeal is dismissed with costs.


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