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Jasoda Kumar Roy Choudhury and ors. Vs. Abdul Rahaman and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal768,152Ind.Cas.930
AppellantJasoda Kumar Roy Choudhury and ors.
RespondentAbdul Rahaman and ors.
Cases ReferredLachmi Lal v. Ganesh Chamar
Excerpt:
- .....defendants are therefore liable to be ejected on the ground that they are now trespassers on the land in suit. in s.a. no. 1911 another objection was taken by the defendants that the suit was not maintainable in as much the entire body of the landlords did not bring the suit, or, in other words, section 188, ben. ten. act is a bar to the present suit. section 188, ben. ten. act, lays down:where two or more persons are joint landlords, anything which the landlord is under this act required or authorized to be, must be done either by both or all those persons acting together or by an agent authorized to act on behalf of both or all of them.4. therefore it is clear that it must be shown that the institution of this suit is required or authorized by the bengal tenancy act. as stated above.....
Judgment:

Nasim Ali, J.

1. These three appeals arise out of three suits for ejectment. The plaintiffs' case in all the suits is that the defendants held the disputed lands as under-raiyats under the plaintiffs, that the terms of the under-raiyati leases expired, that the defendants ware therefore not entitled to remain in possession of the lands after the expiration of the terms of the leases. The defence in all the suits was that though the terms of their under-raiyati leases, had expired, the defendants were entitled to remain on the land by virtue of the provisions of Section 48.0 of the new Bengal Tenancy Act. In Section A. No. 1911 arising out of Suit No. 63 there was another objection on behalf of the defendants that the suit for ejectment was not maintainable as all the landlords had not joined in the suit. The Courts below have concurred in dismissing the suit. Hence the present appeal by the plaintiffs. It has been found by the Courts below that the terms of the under-raiyati leases expired before the Bengal Tenancy (Amendment) Act of 1923 came into operation. There cannot be any doubt therefore that before the new Act came into operation, the defendants were trespassers on the land and that the plaintiffs had acquired the right to eject the defendants from the disputed land. Now, the question is whether the defendants acquired a new right under the amending Act of 1923, or in other words, whether the plaintiffs' existing right to eject these defendants from the disputed land was taken away by the amending Act. The provisions of Section 48-C, so far as they are relevant to the matter under consideration, are as follows:

An under-raiyat shall, subject to the provisions of this Act, be liable to ejectment on the ground that the terms of his lease has expired when he holds the land under a written lease, provided that an under-raiyat shall not be liable to ejectment on the grounds that the term of his lease has expired if the under-raiyat has been in possession of his land for a continuous period of 12 years, whether before or after, or partly before and partly after the commencement of the Bengal Tenancy (amendment) Act of 1928 or his a homestead thereon.

2. In the present case the defendants have been found to be in possession of the land for a continuous period of 12 years partly before and partly after the Bengal Tenancy (amendment) Act came into operation. The question therefore is whether under these circumstances the defendants are entitled to the benefit of the proviso. It seems to me that they are not, because the proviso definitely lays down that they must be under-raiyats when the new Act came into operation. The defendants' under raiyati right came to an end before the new Act came into operation. They could not therefore be considered as under-raiyats at the time when the new Act came into force. Consequently the proviso in terms would not apply to them. Again before the new Act came into operation, the landlords acquired the right to eject these defendants. Under Section 6, Clause (c), General Clauses Act (Act 10 of 1897 and Section 8, Clause (e). Bengal General Clauses Act of 1899) which have codified the well established rules of construction relating to the retrospective operation of statutes in England, any right accrued under a repealed enactment cannot be affected by a repealing enactment unless a different intention appears in the repealing enactment. This intention may be either express implied. There is no doubt that Section 48-C, has not been made retrospective expressly.

3. Again proviso (i), Clause 2 of that section does not justify the contention that by necessary intendment of the repealing enactment the provisions of Section 48-C are to be applied retrospectively. Therefore in my judgment the right acquired by the landlords under the old law, that is, the existing right to eject the defendants has not been touched by Section 48-C, Ben. Ten. Act. This view is not inconsistent with the observations of the Chief Justice in the case of 37 C. W. N. 689 Jiban Krishna v. Abdul Kader, 1933 Cal 485 at p. 697, namely that the case contemplated by the old Section 49, Clause (a) and new Section 48-C, Clause (c) will require to be decided upon other lines,inasmuch as those observations are confined to the case of a written under raiyati lease for a definite term expiring after the commencement of the new Act.' In this case, as already observed, the term of the lease expired before the new Act came into operation. The position would be, different if the under-raiyati lease expired after the new Act came into operation, as in that case on the date the Act came into operation, the defendants would be under-raiyats and consequently they would be entitled to get the benefit of the proviso to Section 48-C. The defendants are therefore liable to be ejected on the ground that they are now trespassers on the land in suit. In S.A. No. 1911 another objection was taken by the defendants that the suit was not maintainable in as much the entire body of the landlords did not bring the suit, or, in other words, Section 188, Ben. Ten. Act is a bar to the present suit. Section 188, Ben. Ten. Act, lays down:

Where two or more persons are joint landlords, anything which the landlord is under this Act required or authorized to be, must be done either by both or all those persons acting together or by an agent authorized to act on behalf of both or all of them.

4. Therefore it is clear that it must be shown that the institution of this suit is required or authorized by the Bengal Tenancy Act. As stated above the defendants are mere trespassers on the land. A suit for ejecting a trespasser is not a suit which is authorized by the Bengal Tenancy Act. The right to bring such a suit arises under the general law. Consequently Section 188 would not apply to a suit for ejecting a trespasser: see 1932 Pat. 259 Lachmi Lal v. Ganesh Chamar, 1932 Pat 259. The next question for consideration in this appeal, that is in S.A. No. 1911, is whether the plaintiffs are entitled to claim khas possession of the 16 annas share of the holding in suit. It has been found by the Courts below that by the kabuliat, Ex. (a), the shares of plaintiffs 1 to 3 were resettled with the defendants after the expiration of the terms of the lease. Mr. Das appearing on behalf of the appellants contended that the kabuliat, Ex. (1), simply shows the settlement of the share of plaintiff 1. In view of the findings of the Courts below I am not prepared to hold that, the share of plaintiff 1 only was resettled by Ex. A. Plaintiffs 1 to 3 therefore will not be entitled to get any relief in this suit.

5. The result therefore is that Section A. No. 1911 is allowed in part and the suit out of which the said appeal arises is decreed in part. The plaintiffs in the said suit other than plaintiffs 1 to 3 will get a decree for joint possession to the extent of their shares along with the defendants in that suit. The other two appeals, that is, 8. A. Nos. 1912 and 1913 are also allowed. The judgments and decrees of the Courts below are set aside and the suits out of which those appeals arise are decreed in full. The plaintiffs in all the appeals will get their costs in the trial Court as well as in the lower appellate Court. There will be no order for costs so far as these second appeals are concerned as the respondents have not appeared in any of these appeals.


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