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Amirullah Mahomed Vs. Nazir Mahomed - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal932
AppellantAmirullah Mahomed
RespondentNazir Mahomed
Cases ReferredPeary Mohun Mookerjee v. Badul Chandra Bagdi
Excerpt:
ejectment - under-rayat--notice--trespass--right of occupancy--bengal tenancy act ( viii of 1885) sections 49(b), 167. - .....thereupon brought the present suit to eject the defendants. the defendants pleaded that they had occupancy rights in the land, but that plea was overruled by both the lower courts. the munsif hold that the defendants being tenants could not he ejected without notice. the subordinate judge, on appeal, has found that the defendants are mere trespassers, and has therefore decreed the plaintiff's suit. the ground of his decision was that on plaintiff's purchase of gomai nassya's holding, the occupancy right of the latter ceased to exist under the provisions of section 22 of the bengal tenancy act. moreover, as the sub-lease by gomai nassya was not made under a registered instrument and was not shown to have been effected with the landlord's consent, it is not valid against the plaintiff,.....
Judgment:

Geidt and Mokerjee, JJ.

1. One Gomai Nassya, who had an occupancy holding under the plaintiff, sublet the land comprised in the holding to the predecessors of the defendants. Subsequently the plaintiff purchased Gomai Nassya's holding, and thereupon brought the present suit to eject the defendants. The defendants pleaded that they had occupancy rights in the land, but that plea was overruled by both the Lower Courts. The Munsif hold that the defendants being tenants could not he ejected without notice. The Subordinate Judge, on appeal, has found that the defendants are mere trespassers, and has therefore decreed the plaintiff's suit. The ground of his decision was that on plaintiff's purchase of Gomai Nassya's holding, the occupancy right of the latter ceased to exist under the provisions of Section 22 of the Bengal Tenancy Act. Moreover, as the sub-lease by Gomai Nassya was not made under a registered instrument and was not shown to have been effected with the landlord's consent, it is not valid against the plaintiff, the landlord.

2. Now Section 22(1) of the Bengal Tenancy Act which lays down that in a case like the present, the occupancy right of a holding purchased by the landlord shall cease to exist, goes on to enact that 'nothing in this sub-section shall prejudicially affect the rights of any third person.' The Subordinate Judge is of opinion that an under-tenant is not included in the expression 'any third person.' It appears to us that there is neither reason nor authority for the interpretation, and that an under-tenant would have as against a landlord, who purchased the occupancy holding, any rights which he bad as against the occupancy rayat. It is true that the defendant's sub-lease is under Section 85(1) of the Bengal Tenancy Act not valid as against the plaintiff, the landlord; bat as Gomai Nasaya could not have ejected the defendants without a notice under Section 49(b) of that Act, it would follow that the defendants, before they are ejected, are entitled to a similar notice from the plaintiff before he can eject them.

3. The learned pleader for he respondents however has called our attention to the decision, of this Court in Peary Mohun Mookerjee v. Badul Chandra Bagdi (1900) I.L.R. 28 Calc. 205, where it was held that the expression 'the rights of any third person' can only mean such rights as are valid; and that as a sub-tenant, to whom a sub-lease had been granted without a registered instrument and without the landlord's consent, had no valid rights as against a landlord, who had purchased at an execution sale for arrears of rent the occupancy holding in which the sub-tenancy was situated. In that case the defendant resisted the suit for ejectment on the ground that the landlord after his purchase had not complied with the provisions of Section 167 of the Tenancy Act by serving a notice annulling the incumbrance of the sub-lease. The Court decided that a notice of that kind was not necessary to entitle the plaintiff to succeed in his suit for ejectment as the sub-lease was under Section 85(1) invalid as against him. The defendant in that case put forward a claim, which if it had succeeded would have entitled him to held the land in perpetuity, because the plaintiff had not within one year from his auction purchase served a notice of the kind required by Section 167. It would have been a strange result, if the sub-tenant could in this way establish as against the landlord a right which he could not have maintained against the occupancy rayat, and establish that right too in the face of Section 85(1) by which his sub-lease as invalid was against the landlord. The question whether the defendant was entitled to the same notice under Section 49(b) from the purchaser of the occupancy holding as he would have been entitled to from his lessor was not discussed in that cage and apparently no such plea was raised as the defendant claimed to hold in perpetuity. Here the appellant, now that he is found to have no occupancy right, disclaims any title to hold the land against the landlord's will, but insists that, until that will is communicated to him in the manner provided by law, he must be regarded as a tenant and not as a trespasser. We are of opinion that this claim is well founded, and that there is nothing in Section 22(1) of the Bengal Tenancy Act by which on the plaintiff's purchase, the defendants were converted ipso facto from tenants into trespassers.

4. We accordingly hold that they cannot be ejected without the notice prescribed by Section 49(b), and we therefore reverse the judgment of the Subordinate Judge, and restore that of the Munsif, dismissing the suit. The defendants are entitled to the costs in all the Courts.


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