1. This appeal raises a point of some novelty but not of difficulty. The facts necessary to be stated are that the father of the deft-applt was the owner of two-thirds share in touzi No. 1075 & this two-third share was recorded in the registers of the Collectorate as touzi No. 5989. He had also purchased 3.28 acres of lands appertaining to holding Nos. 34 and 35 (which are the subject matter of the suit) by sale deeds, Ex. A - series of the years 1895, 1906, 1907 & 1909. These lands were acquired by purchase from. tenants who had occupancy rights therein. The deft was recorded in the Current Settlement Register as holding these lands under Schedule 6 (2), Orissa Tenancy Act. Touzi No. 5989 was put up for sale by the Collector for realising arrear of land revenue on 24-10-40 & was purchased by the pltf. The pltf took delivery of the same through the revenue Ct on 19-1-42. In Nov 1943 he instituted a suit alleging dispossession by the deft-applt in Dec 1942. The pltf's case was that the interest of the deft in the occupancy holding also passed to the purchaser at the revenue sale. That plea is resisted by the deft on the ground that what actually passed to the purchaser at the revenue sale was only the interest in the estate & not the interest in the holding which the deft had purchased. The question that is to be considered is which of these contentions is to prevail.
2. Mr. B. K. Pal, appearing for the deftapplt, contends that the law applicable to this case is Schedule 2 (2), Bengal Tenancy Act which was operative in Orissa before the introduction of the Orissa Tenancy Act in the year 1913. Section 22 (2), Bengal Tenancy Act corresponds to Schedule 6 (2), Orissa Tenancy Act, but there is a substantial difference in the language of the two sub-sections. Under Schedule 2( 2), Bengal Act, as it stood before its amendment in 1907, a co-sharer-proprietor purchasing the occupancy right in a land would be entitled to hold the land subject to payment to his co-proprietors of the rent which may from time to time be payable to them. Section 26 (2) of the Orissa Act, on the other hand, declares that such person shall have no right to hold the land as a ryot but shall hold it as a proprietor & shall pay to his co-sharers a fair & equitable sum for the use and occupation of the same. The difference in language seems significant & created different rights in the purchasing co-proprietor under the two Acts. Under the Bengal Act the purchase of the holding by one co-sharer would not enure to the benefit of the other co-sharers & there would be no merger of interest of the ryot with that of the landlord. All that Schedule 2 (2), Bengal Tenancy Act declared before its amendment in 1907 is that the occupancy right in a holding would be extinguished in the event of its purchase by a co-sharer proprietor. That sub-section, as it stood before the amendment, was as follows:
'22 (2) If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, it shall cease to exist; but nothing in this sub-section shall prejudicially affect the rights of any third person.'
This section was the subject of controversy for a long time & came up for interpretation before the Calcutta H. C. In 'Jawadul Haque v. Ramdas', 24 Cal 143 : (1 OWN 166 S B) & 'Rammohan v. Sheik Kachu', 32 Cal 386: (1 CLJ 1 FB), the view taken by that H. C. was that Schedule 2 (2) did not extinguish the holding, that occupancy right is only an incident of the holding & the extinction of the occupancy right did not necessarily put an end to the holding itself. The amending Act of 1907 did not alter the law as laid down in these two cases. It merely emphasises the position that the purchasing co-proprietor shall hold the land subject to payment of proportionate rent to his co-sharers, & that he was not to be deprived of the benefit of his purchase nor would his purchase enure to the benefit of the other co-sharers who did not contribute to the purchase. The result was the creation of an intermediate status for the purchasing proprietor, which was certainly not that of an occupancy ryot nor that of a tenant-at-will. The position was merely that he had right to retain possession of the land subject to the payment to his co-sharers of their shares of the rent. In the latest decision of the Patna H. C. reported in 'Upendra Pratap Narain v. Dulhin Ishwarwatl Kuer', 27 Pat 610: (AIR (37) 1950 Pat 115 FB), the majority view follows the law as laid down in 'Jawadul Haque v. Ramdas', 24 Cal 143: (1 CWN 166 SB). It was held in that case that a co-sharer-landlord who had purchased a transferable occupancy holding was entitled to retain it in his possession as his purchased land on a partition taking place between him & his co-sharers. In 1908, Schedule 2 (2), Bengal Tenancy Act was further amended in its application to East Bengal & Assam. The sub-section, as applicable to East Bengal, declares in language identical with that used in Schedule 6 (2), Orissa Tenancy Act, that the purchasing co-proprietor shall have no right to hold the land as a ryot but shall hold it as a proprietor. It has been held in 'Abhoy Charan v. Ram Sunder', AIR (17) 1930 Cal 109: (124 IC 323), that this amendment made in 1908 has no retrospective effect & that a purchaser before the introduction of the amendment would not lose the right he had before the amendment was made. It was accordingly contended by Mr. Pal that all the purchases made by his client being prior to 1913 when Schedule 6 (2), Orissa Tenancy Act took the place of Schedule 2 (2), Bengal Tenancy Act, the right acquired by him would not be affected by the Orissa Tenancy Act, 1913. We are satisfied that this contention is correct & must prevail, the result being that the deft-applt can retain possession of the lands that he had acquired by purchase prior to 1913. His occupancy right in such lands is certainly extinguished but the holding continues & he can hold the land subject to payment of rent to the co-sharer proprietors. The remark made against his name in the Current Settlement Record-of-Rights does not affect the legal position or his status which he had acquired before the passing of the Orissa Tenancy Act.
3. The correct position, therefore, appears to be that the applt was by reason of his purchase of the occupancy holding a tenant under the general body of proprietors & was liable to pay rent to them under Schedule 2 (2), Bengal Tenancy Act, as amended in the year 1907 & that there was no merger of the two interests, provision for which was subsequently enacted in Schedule 6 (2) of the Orissa Act. The provision in the Bengal Act was expressly to the effect that he
'shall be entitled to hold the land subject to the payment to the co-proprietors or joint tenure-holders or the shares of the rent which may be from time to time payable to them.'
The Section expressly provides for payment of 'rent' instead of 'a fair & equitable sum for the use & occupation of the same' as laid dowa in Schedule 6 (2) of the Orissa Act.
4. Another distinction to be noted is that under the previous law the purchasing co-proprietor was 'entitled to hold the land' whereas it was laid down in the Orissa Act that he shall have no right to hold the land as a ryot. The difference in language is, in my opinion,, deliberate & while the Orissa Act enacted that there should be a merger of the ryoti interest in the proprietary interest the law prior to the introduction of the Orissa Tenancy Act, 1913 was otherwise. The purchasing co-proprietor was certainly not a ryot because Schedule 2 (2) of the Bengal Act before its amendment in 1907 declared that the ryoti interest shall cease to exist. He had therefore some interest in the land which was not illusory or intangible. The right to hold the land subject to payment of rent to his co-proprietors was recognised by the law as a real right. The question accordingly is whether such right would pass to the purchaser at a revenue sale of the touzi. Section 13 of the Bengal Act XI (11) of 1859 empowers the Collector to put up to sale that share of the estate which has been separately registered & in respect of which a separate account has been kept. Section 54 declares the rights of a purchaser of a share in the estate sold under Schedule 3 & lays down that when a share or shares of an estate may be sold under the provisions of Schedule 3 or Schedule 4 the purchaser shall acquire the share or shares subject to all encumbrances & shall not acquire any rights which were not possessed by the previous owner or owners. The section declares in affirmative terms what the purchaser shall acquire & also contains a negative declaration as regards what he shall not acquire. On a plain reading of the section it appears that all that the purchaser acquires is only the share which the defaulting proprietor had in the estate; & what he does not acquire is any right which the previous owner did, not possess. If I am right in my view of the provision in Schedule 2 (2) of the Bengal Act, as stated above, it cannot be said that the previous; owner owned, in the land that he purchased from the occupancy ryot, any interest as owner of the estate, since Schedule 2 (2) kept the two interests separate & recognised the status of the purchasing co-proprietor as a tenant payingrent, to the general body of co-proprietors. It therefore follows that the deft-applt did not possess the interest, that he had purchased as. proprietor. The section does not say that the purchaser at the revenue sale shall acquire all the rights which were possessed by the previous owner; in terms it expressly says that he shall not acquire any rights which were not possessed by the previous owner. This can only mean that the purchaser acquires no more than what was the property of the previous owner, viz., his share in the estate. The holding did not become the private land of the proprietor; it was held by him, in a different capacity & therefore would not pass at the revenue sale to the auction-purchaser.
5. I would accordingly allow this appeal with costs.
6. I agree.