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Gorai Mollah and ors. Vs. Panchu Haldar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1930Cal111
AppellantGorai Mollah and ors.
RespondentPanchu Haldar and ors.
Cases ReferredAbhoy Churn Modak v. Ram Sunder Sauha A.I.R.
Excerpt:
- .....of jawadul huq v. ramdas saha [1897] 24 cal. 143, a decision of the special bench and to the full bench decision in ram mohun pal v. kachu [1905] 32 cal. 386. there is another decision prafulla nath tagore v. secretary of state a.i.r. 1921 cal. 429, and also a decision reported in abinash chunder bhattacharjee v. amar chunder de [1923] 27 c.w.n. 760n. again, there is a decision in ramlal sukul v. bhela gazi [1910] 37 cal. 709. these decisions, it appears to me are binding on this court because there is a decision amongst others of a full bench supported by a strong current of authority. the full bench decision in ram mohan pal v. kachu [1905] 32 cal. 386 is further supported by this circumstance that the legislature being, minded to change the rule of law as laid down by the full bench.....
Judgment:

Rankin, C.J.

1. In this case, it appears that, in 1897, plaintiff 1 purchased an occupancy raiyati interest under a certain howla. In 1898, he took a kabuliyat from the defendant's predecessors. That kabuliyat was to be in operation for nine years; but the tenants have held over upon the terms thereof. The plaintiffs sue in ejectment and the defence with which they are met is that these defendants are not under-raiyats but are raiyats. It is for the defendants to make that case good, particularly if they have to begin by admitting that their tenancy in origin was an under-raiyati. They claim to make that defence good in this way : They say that a six anna share in the howla superior to the occupancy raiyati interest which plaintiff 1 purchased in 1897 was bought by a brother of plaintiff 1, and they further say that this transaction and also the acquisition of the occupancy right were transactions by plaintiff 1 and his brother jointly. From this, they go on to maintain, first, that the purchase of the six annas share in the howla was before the purchase in 1897 of the occupancy right and, on that basis, they say that the case comes within Clause (2), Section 22, Ben. Ton. Act, before it was amended in 1907.

2. Now, before the trial Court, the kabala representing the purchase of the six anna share of the howla was not produced. The entry in the khatian relating to the purchase was the evidence upon which the matter was discussed and it would seem then to have been agreed by both the parties and assumed by the trial Court as well as by the lower appellate Court that the purchase of the interest in the howla was prior to 1897. If the defendants were to succeed in making out their defence and were to do so by bringing the case within Clause 2, Section 22, Ben. Ten. Act, the burden of proof was entirely upon them to show that, at the time this occupancy raiyati was acquired, the purchasers were cosharers, in the howla. Strictly speaking, therefore, it was for the defendants to show the date of the purchase of the howla interest; but it seems to -have been a matter of no controversy in the Courts below and the assumption was made in favour of the defendants on the point.

3. In this Court, Mr. Ghose on behalf of the plaintiffs-appellants has produced a registered kabala of the year 1902 which purports to satisfy the description of the deed by which Lal Mahomed brother of plaintiff 1 purchased the six anna interest in the howla. It looks very much, therefore, as if the real facts of the case were that the purchase of the superior interest was made after the acquisition of the interest in the raiyati. If that be true, then it is clear that there is no defence to the plaintiffs' claim because the matter would come within the explanation of the original Section 22. Assuming, however, the facts to be as the Courts below thought, the position is that the case would come within Clause 2, Section 22. That clause was as follows:

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'.

4. Many years ago, a question arose, first whether this meant that the tenancy of holding should cease to exist or merely the occupancy right should cease to exist and that matter was decided in favour of the latter alternative in many cases.

5. I will refer to the case of Jawadul Huq v. Ramdas Saha [1897] 24 Cal. 143, a decision of the Special Bench and to the Full Bench decision in Ram Mohun Pal v. Kachu [1905] 32 Cal. 386. There is another decision Prafulla Nath Tagore v. Secretary of State A.I.R. 1921 Cal. 429, and also a decision reported in Abinash Chunder Bhattacharjee v. Amar Chunder De [1923] 27 C.W.N. 760n. Again, there is a decision in Ramlal Sukul v. Bhela Gazi [1910] 37 Cal. 709. These decisions, it appears to me are binding on this Court because there is a decision amongst others of a Full Bench supported by a strong current of authority. The Full Bench decision in Ram Mohan Pal v. Kachu [1905] 32 Cal. 386 is further supported by this circumstance that the legislature being, minded to change the rule of law as laid down by the Full Bench altered the Statute in 1907 and did not alter it with retrospective effect. In these circumstances, it appears to me that, while I do not doubt that in the observations of my learned brother B.B. Ghose, J., in the case of Roshanali v. Chandra Mohun Das A.I.R. 1923 Cal. 701, there is very forceful reason, it is nevertheless quite impossible for a Division Bench of this Court to ignore, in the circumstances which I have mentioned, the decision of the Full Bench reported in Ram Mohanlal v. Kachu [1905] 32 Cal. 386. If the matter were worth while, it might be a matter for consideration of the Chief Justice whether, to constitute a Special Bench of seven Judges to reconsider at this time of the day the decision of the Full Bench to which I have referred. There is no reason to think, however, that, after all these years, such a course has become necessary. But if that decision of the Full Bench is to be changed, it must be changed in that way. In the present case, we are bound by the Full Bench decision; and, in that view, this appeal will have, in any event, to be allowed. In my judgment, the present appeal must be allowed with costs and a decree for ejectment must be passed for the plaintiffs.

6. I should like to add that the judgment of Sir John Edge in Midnapore Zemindary Co. Ltd v. Naresh Narain Roy A.I.R. 1924 P.C. 144 does not seem to mo to be directed to the construction of Section 22 of the old Ben. Ten. Act. The law as laid down by him was to the effect that a landlord co-sharer purchaser of a tenancy was a trustee for all the other cosharers and that in that way there was an extinction of the jote right. That does not seem to me to be in point on the present question.

Suhrawardy, J.

7. I agree. I have given my reasons fully in support of the view taken by the learned Chief Justice in my judgment in the case of Abhoy Churn Modak v. Ram Sunder Sauha A.I.R. 1929 Cal. 100.


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