1. Notwithstanding the remarkable ingenuity displayed by Baboo Rashbehary Ghose, we are unable to discover that his argument amounts to anything more than an attempt to establish in an exceptional case that rights of occupancy are transferable. The mode in which, and the circumstances under which, the power of transferring such rights is sought to be exercised will continually vary, and although it might be possible to lay down a comprehensive rule which should suffice to exclude other such conceivable cases, I am not, for my part, anxious to frame any such formula. As I said during the argument, I desire in every case coming before me to decide that case to the best of my ability. Of course when in any decided cases, whether by myself or other Judges of the Court, we come upon arguments and considerations which are applicable to the case before us, although the two cases may not be precisely alike, I am very willing and ready to use those arguments. Now the matter under consideration in one form did undoubtedly come before a Full Bench of this Court in Narendra Narayan Roy Chowdhry v. Ishan Chandra Sen (13 B.L.R., 274), and there the learned Chief Justice, Sir Richard Couch and four other Judges (of whom I was one) held unanimously that the right of occupancy which a certain ryot called A had acquired under Section 6 of Beng. Act VIII of 1869 at the time of the sale to B was not transferable: and it was further held in that case, that by ceasing himself to hold or cultivate the land it might be considered that A had abandoned his right or that the right had ceased, and that no right therefore remained in A or his heirs such as would prevent the plaintiff from ejecting B.
2. It is sought to distinguish that case from the present, on the ground that the outgoing tenants, or persons originally in enjoyment of the right of occupancy, had not voluntarily sold their rights, but the sale was the act of the Court: and further that the defendants on becoming purchasers of such right as they alleged themselves to be have continued the former holders in immediate occupancy of the land.
3. Now in the case before the Full Bench, the fact that the former occupant ryot had gone out was no doubt referred to as a material circumstance. If it be true that the former occupant ryots are still upon the land, that circumstance does not exist in the same shape, but does in this shape that they are upon the land no longer as ryots with a right of occupancy, but as tenants-at-will under the so-called tenant with right of occupancy. By accepting that position, it seems to me that they have just as much abandoned the right of occupancy as if they had gone away from the land.
4. As regards the mode of transfer, it is clear there is no ground for distinguishing a voluntary sale from a sale in execution. If a sale by private contract would validly pass a right of occupancy, then a sale in execution of a decree would equally pass it, and vice versa. So far, I think, the case clearly is governed by the authority of the Full Bench ruling. Then it was said that one of the original occupant ryots was still in possession, and as there were four such joint ryots, and one of them still remains, the right of occupancy must be considered to have inured to the survivor, and the other defendants were entitled to hold jointly with him. Now that remaining occupant ryot is no party to the suit, and from that circumstance as well as from the findings of the Court below and from the allegations in the plaint, I think it clear that that ryot's share has been separated and is now separately occupied by him, and that the controversy is as regards the separate shares of the other three. This argument, therefore, cannot be used on the side of the. plaintiff.
5. On the whole, it seems to me clear that this is simply another attempt in a different shape to compel the recognition of purchases of rights of occupancy which, in the absence of clear well-defined custom to that effect cannot prevail. That there was no such custom in the locality is clear from the findings of the Court below. The special appeal will be dismissed with costs.
6. This judgment will govern Nos. 635 and 636.