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Jogessur Das and ors. Vs. Aisani Koyburto and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal553
AppellantJogessur Das and ors.
RespondentAisani Koyburto and anr.
Excerpt:
bengal tenancy act (viii of 1855), sections 20, 21 - suits pending at time act came into force--suit for ejectment--acquisition of right of occupancy. - .....years, and that he is a ' settled raiyat' within the meaning of those words in section 20 of the bengal tenancy act. the suit was brought on the 6th october 1885, that is to say, before the new tenancy act came into operation. the lower appellate court has held that, under section 21 of the bengal tenancy act, the defendant-respondent before us his acquired a right of occupancy. this suit was a pending suit when the bengal tenancy act came into force. the written statement of the defendant was filed after the 1st november 1885, i.e., after the act came into operation, and also the notice of the suit was served upon him after that date. it is clear that if section 21 does not apply to this suit the lower appellate court is in error in holding that, as regards the plots involved in this.....
Judgment:

1. This appeal relates to a part of the subject-matter of the original suit which was brought by the appellant as landlord to recover possession of certain plots of land which are in the possession of the defendant, as tenant under the plaintiff, on the ground that the tenancy has terminated by a notice to quit served upon the defendant, the tenant, some time after the 2nd of March 1883. As regards the plots involved in this appeal the finding of the lower Appellate Court is that they have been in the possession of the defendant for less than 12 years, and that he is a ' settled raiyat' within the meaning of those words in Section 20 of the Bengal Tenancy Act. The suit was brought on the 6th October 1885, that is to say, before the new Tenancy Act came into operation. The lower Appellate Court has held that, under Section 21 of the Bengal Tenancy Act, the defendant-respondent before us his acquired a right of occupancy. This suit was a pending suit when the Bengal Tenancy Act came into force. The written statement of the defendant was filed after the 1st November 1885, i.e., after the Act came into operation, and also the notice of the suit was served upon him after that date. It is clear that if Section 21 does not apply to this suit the lower Appellate Court is in error in holding that, as regards the plots involved in this appeal, the defendant has acquired a right of occupancy, because under Bengal Act VIII of 1869 the defendant was not entitled to rely upon his right of occupancy unless he had established that he bad been in possession of the land in dispute in this appeal for 12 years. The lower Appellate Court thinks that Section 21 has a retrospective effect and applies to all suits pending on the day on which the Act came into operation.

2. We think that the view taken by the lower Appellate Court is correct. We decide the question raised before us with reference to the express language of Section 21. It is true that on general principles an Act affecting the rights of parties would not apply to a suit commenced before the Act came into operation; but in this instance we find that the Legislature intended that Section 21 should apply to suits pending on the date on which the Bengal Tenancy Act came into force. The decision of this question therefore turns upon the language of Sub-section 2 of Section 21 of the Tenancy Act. The Sub-section is to the following effect: 'Every person who, being a settled raiyat of a village within the meaning of the last foregoing section, held land as a raiyat in that village at any time between the 2nd day of March 1883, and the commencement of this Act, shall be deemed to have acquired a right of occupancy in that land under the law then in force.' It is clear from this part of the Sub-section that the Legislature provided that a settled raiyat as defined in the Act should be deemed to have acquired a right of occupancy in the land occupied by him as a raiyat in the village of which he is a settled raiyat between the 2nd of March 1883, and the commencement of the Act, that is to say, the 1st November 1885, not under the new Act but under the Act then in force, that is to say, Bengal Act VIII of 1869. It is clear, therefore, that this part of the section was intended to modify the provisions of Bengal Act VIII of 1869 as regards the class of suits specified therein during the period mentioned above. Then follow words which, in our opinion, indicate that the provisions already referred to were to apply to all suits instituted before the Act came into operation, and which had not resulted in a decree. These words are: 'but nothing in this Sub-section shall affect any decree or order passed by a Court before the commencement of this Act.' That is to say, that the retrospective operation provided in the first part of the subsection should have this exception only, viz., that where a decree or order has been passed by a Court before the commencement of this Act relating to the rights of parties, such decree or order should not be affected by the provisions regarding the retrospective operation of the section. It follows, therefore, that if a suit commenced before the Act came into operation has not resulted in a decree, it would be governed by the provisions of the section. Therefore, although on general principles a change in the law affecting the rights of parties does not ordinarily govern pending suits, yet, in this particular instance, the Legislature having made a provision to the contrary, we are bound to carry out the law.

3. The decision of the lower Court is therefore correct and this appeal must be dismissed with costs (1).


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