1. The plaintiff in the suit giving rise to this appeals claimed to have his title declared as the patnidar under defendants 13 and 14, the purchasers of Taluk Syed Natir, sold for arrears of revenue, on 11th January 1919 free from all incumbrances, and to have a decree passed in his favour for khas possession of an eight annas share of the lands in suit. According to the plaintiff, defendants 1 to 12 had no right to be in possession of those lands. In view of amicable settlement between parties concerned effected from time to time it is only necessary to take notice of the defence of defendants 3 to 5 and defendant 11 against whom this appeal is now directed. Defendants 3 to 5 claimed to be in possession as darpatnidar under defendant 2, who was a patnidar by virtue of a series of transfers in respect of 2 karas 2 powas 3 jastis of land out of the area described in the plaint created by defendant 1 Defendant 11 asserted that he was in possession of 1 kara and 1 powa of land in the north-west part of plot 1 and some portion of plot No. 2 described in the plaint, as a tenant with right of occupancy. The defence therefore of these defendants in the suit was that the interest claimed by them were protected from the effect of revenue sale and the plaintiff could not get khas possession of the lands in suit in their possession. The Courts below having given effect to the defence raised by the contesting defendants 3 to 5 and 11 and the plaintiff's prayer for khas possession having been dismissed, the plaintiff appealed to this Court. In view of the nature of the defence set up, the case of defendants 3 to 5 has to be considered separately from the case of the other, defendant, namely defendant 11.
2. The estate to which the lands in suit appertain, Taluk No. 54720/1 Syed Natir was sold for arrears of revenue free from all incumbrances previously created thereon by any person other than the purchaser and under the provisions contained in Section 71, Assam Land and Revenue Regulation, 1886, a tenure created bona fide, and at a rent no less than the full amount of the revenue fairly payable in respect of the land could not be avoided by the purchaser. It was necessary therefore for defendants 3 to 5 seeking protection from eviction to establish that the patni and the darpatni under which they claimed to be in possession, were bona fide settlements and that the rent reserved was not less than the full amount of the revenue payable for the lands settled. So far as the rent of the tenure is concerned, it has not been contended before us in this appeal, that the rent of the tenure in regard to which protection was claimed created by the patni patta Ex. 2 was less than the proportionate share of the revenue payable for the lands covered by that patta. The question whether the settlement evidenced by the document Ex. 2 was a bona fide one, was elaborately discussed before the Courts below. On the findings arrived at by those Courts it is impossible for us to come to any conclusion other than the one arrived at by the Court of appeal below that the tenure in question was created bona fide so as to make the provision contained in Section 71, Assam Land and Revenue Regulation applicable to it, in the matter of its protection. On the finding that the person by whom patni was created, Hara Kumar Pal, had acquired title to the lands comprised in the patni by adverse possession, and that he had opened a separate account of estate No. 1050 and in view of the argument that the patni, as created by a trespasser was not entitled to protection after revenue sale, the question for consideration was whether the party claiming as patnidar was bona fide in possession by collecting rent and could the darpatnidars claiming under the patnidar claim to be in the same position. It is no doubt correct to say that the incumbrance which may be set aside under Section 71, Assam Land and Revenue Regulation, includes not merely an incumbrance actively created by the previous holder but also an incumbrance created by the acquiescence or laches either wilful, or arising from negligence and a purchaser at a revenue sale is entitled to avoid an interest acquired by anyone, by adverse possession: see Mohamed Nashim v. Kashi Nath (1899) 26 Cal 194.; but the question before us is not avoidance of an interest created by adverse possession; the question being whether the persons claiming to be in possession were persons bona fide settlement holders under the patni and the darpatni created from time to time. The patni in the case before us was created in the year 1299 B.S. and on the findings arrived at by the Courts below we are unable to hold that there was any want of bona fides on the part of the settlement holders in the position of defendant 3 to 5 which could disentitle them from the protection from eviction, afforded by the statute. The argument in support of the appeal so far as they relate to the defence of defendants 3 to 5 in the suit, cannot in the above view of the case, be accepted as sound. The defence of defendant 11 in the suit rested on the basis of his being a tenant who has acquired a right of occupancy in the lands in suit in his possession. The estate to which the lands appertained was sold for arrears of revenue on 11th January 1919; the sale was confirmed on 27th November 1919. The potta in favour of defendant 11, Ex. D in the case, is dated 24th March 1907; and 12 years from the date of the potta was completed a few months after the date of sale but before the confirmation of sale. The settlement as evidenced by the potta was for grazing purposes. It has been found by the Court below that the potta
was created in confirmation of defendant 11's jote. As his cosharers surrendered, he executed, kabuliyat for himself only.
3. The Court below has further stated that there was no evidence that defendant 11 held the lands comprised in the potta
for avocation totally unconnected with agricultural purpose, and that evidence on the re-cord went to show that defendant 11 converted a portion of the lands into paddy land.
4. The learned Subordinate Judge on the finding arrived at by him that the defendant had acquired right of occupancy before the auction-purchasers acquired title to the lands in suit by their purchase at the sale for arrears of revenue came to the conclusion that the defendant's right of occupancy will hold good against the plaintiff, a patnidar under the auction-purchasers. The first question that arises for consideration on this part of the case, is the one relating to the nature of the tenancy evidenced by the potta, Ex. D. It is to be noticed that land in respect of which right of occupancy could be acquired by a tenant must be land used or to be used for agricultural or horticultural purpose, and for that purpose land occupied for purpose subsidiary to or promoting agricultural or horticultural becomes subject to right of occupancy. In the case before us on the findings on evidence arrived at by the Court below to which reference has already been made, and upon a plain reading of the potta Ex. D, it is right to hold that the tenancy in favour of defendant 11 was for grazing of cattle required for agricultural pursuits, and in this connexion the fact that a portion of the lands comprised in the tenancy originally created for grazing purpose was converted into paddy land, as found by the Court below, assumes importance. In our judgment the lands in occupation of the defendants were lands in respect of which right of occupancy could be acquired.
5. The question that comes up for consideration next, is whether right of occupancy had been acquired by defendant 11 at the date on which the estate in which the lands in question were comprised was sold for arrears of revenue on 11th January 1919. There is no dispute that the period of 12 years had elapsed so far as the occupation of the defendant was concerned on the date of the confirmation of the sale on 27th November 1919. It is necessary to determine whether the defendant could get the benefit of his previous possession of the lands along with his cosharers, before the execution of a kabuliyat by himself in the year 1907. The Court below has referred to the evidence on the side of the plaintiff showing that defendant 11 was in possession for nearly 30 years at the time when one of the witnesses for the plaintiff was giving evidence in Court in 1928, and it has been found by that Court that Ex. D executed in the year 1907, was a confirmatory potta in favour of defendant 11 in confirmation of his jote, after his cosharers had surrendered their interest in the tenancy in question. It was argued in support of the appeal on the authority of the decision of this Court in the case of Mahomed Chaman v. Ram Pershad (1874) 8 Beng LR 338, that upon defendant 11's own case, that he had other persons co-tenant as, that upon their surrendering their rights, he took a settlement of the entire tenancy, the incidents of the old tenancy were extinguished, and that a new tenancy with new rights having come into existence from 24th March 1907, the defendant could not have acquired a right of occupancy on the date of the sale for arrears of revenue.
6. It has no doubt been held in the case referred to above that the right of occupancy acquired under Section 6, Act 8 of 869 must be an occupancy of one and the same kind, that is to say, it must be occupancy by the person pleading it, or by his father, or some other person from whom he inherits. It is worthy of notice that Mahomed Chamans case (1874) 8 Beng LR 338 mentioned above, was considered by this Court in a subsequent case: Forbes v. Ram Lal Biswas (1874) 22 WR 51, in which it was held that the continuous possession for 12 years, which is the subject of Section 6, Act 8 of 1869 must be possession under one and the same right. This right might have been, in its inception, joint with other persons, and by the death of cosharers, ultimately become a sole right, without its continuous nature being affected. The real issue, as pointed by the learned Judges in Forbe's case (1874) 22 WR 51 mentioned above, was whether possession was under one and the same right; and the case before us is stronger than that case in view of the position that there was surrender by the cosharers of defendant 11 of their interest; and the potta in favour of the defendants which has been found by the Court below to be confirmatory in its nature. As observed by the learned Judges deciding the case of Forbes v. Ram Lal Biswas (1874) 22 WR 51 the right might be joint in its inception with other persons, but it might be continuous throughout in its nature.
7. In the case before us the right continuous in its nature by its surrender by cosharers devolved exclusively on defendant 11. In our judgment the correct view of the law applicable to the case before us, is the one laid down in Forbes case (1874) 22 WR 51, and we have no hesitation in expressing our agreement with the same, land in holding that defendant 11 had acquired a right of occupancy at the date of the sale for arrears of revenue on 11th January 1919, and was entitled to protection from eviction. The conclusion arrived at above completely disposes of the appeal against defendant 11.
8. In the above view of the right of defendant 11 as against the plaintiff, so far as the claim to protection from eviction is concerned, it is unnecessary to go into the other questions raised in support of the appeal against defendant 11. Regard being however had to the elaborate argument addressed so us relating to the matters indicated below, we propose to deal briefly with the points raised. It was urged that the tenant must complete 12 years' possession before the date of the revenue sale and not before the date of the confirmation of the sale. With reference to this question the further questions emerge for consideration as to what was sold at the revenue sale and when were the rights of the purchaser under the sale exercisable under the law. There cannot in our opinion be any doubt as regards the position that what is sold at the sale for arrears of revenue is the estate in arrears, and the estate is sold free of incumbrances; protection is afforded to a tenant having a right of occupancy under the rent law. It does not follow from that the tenant who had acquired the right of occupancy by 12 years' occupation at the date of the confirmation of the sale which is an event that might take place a long time after the date on which the sale of the estate was held could be evicted, The tenant in occupation could in our opinion have the benefit of his continuous possession from the date of sale to the date of confirmation of sale. It is further to be noticed that it is well settled now that the interest of the incumbrancer does not cease to exist without any act done by the purchaser: an estate does not become free from incumbrances by the mere sale, if the purchaser does not avoid them.
9. The incumbrancers are not ipso facto avoided by the sale of the estate for arrears of revenue, and are only liable to be avoided at the Option of the purchaser at such sale; such option may be exercised by the institution of a suit within the time allowed by law. The question then arises when did the title vest in the purchaser under the law. So far as the Assam Land and Revenue Regulation goes there is the clear provision that the title to the property sold vests in the purchaser from the date of the sale certificate, and not before; and the sale certificate shall bear the date on which the sale became final: see Sections 80 and 85 as also Rule 146 and Form 39, Assam Land and Revenue Regulation. In the face of the statutory provision applicable to the case before us, we are not prepared to give effect to the arguments on behalf of the plaintiff-appellant, that the title vested in the purchaser at the date of the revenue sale, and that such a title entitled the plaintiff claiming through the purchaser to avoid a tenancy in respect of which there was a continuous possession by the tenant for more than 12 years when the sale became final. There was right in the purchaser to avoid the tenancy, and that right could be exercised only when the title had vested in him; before the vesting of the title in the purchaser, if there was the acquisition of the right of occupancy and there is nothing contained in the statutory provisions applicable to the case before us and in the general law which could bar the acquisition of such right, the right so acquired could not be avoided at the time when the title to the estate sold for arrears of revenue vested in the purchaser. Any view contrary to the above would, in our judgment, militate against the clear provisions of the law applicable to the Province of Assam; and we are unable to accept any proposition to the contrary if that has been laid down by this Court in the case of Adhur Chandra Banerji v. Aghore Nath (1898) 2 CWN 589 dealing with the provision of Section 316, Civil P.C., 1882, the decision in which case was relied upon by the learned advocate for the appellant in his arguments before us.
10. As indicated already in view of our definite decision that defendant 11 had acquired the right of occupancy before the date of the sale for arrears of revenue on 11th January 1919, the opinion expressed by us on the question of the date of vesting of title under the revenue sale and on the further question of the plaintiff's right to avoid the tenancy of defendant 11, if the occupancy right of that defendant was acquired before the date of confirmation of the sale, counting the period of 12 years possession from the time when defendant 11 came to be in exclusive possession in 1907 after his cosharers had surrendered their interest, it is not necessary for the purpose of the case before us. In our judgment defendant 11 acquired the right of occupancy in the tenancy held by him at the time when the sale was held on 11th January 1919, and the tenancy held by him could not be avoided under the law.
11. In the result this appeal is dismissed with costs, the decisions of the Courts below being affirmed. Defendant 5, respondent, and defendant 11 are entitled to separate sets of costs in the appeal. The plaintiff-appellant and defendant 1, respondent in this appeal, have settled the matters in controversy as between themselves out of Court, and a petition of compromise has been filed in this Court by those parties. The decree prepared in this Court will be in accordance with the terms of compromise, so far as the plaintiff appellant and defendant 2, respondent are concerned the petition of compromise filed in Court forming part of the decree. It is necessary to mention that the terms of compromise settled as between the plaintiff and some of the defendants in the suit at different stages of the litigation, will be operative as between the parties concerned, so far as they are consistent with our decision as to the rights of parties as contained in this judgment.