1. This appeal is preferred by the plaintiff in a suit in ejectment. The land in question is situated in Ghat Chota Bankadaha in the district of Bankura and was formerly Ghatwali land. It was resumed by the Government in or about the year 1900 and transferred to the Maharaja of Burdwan as Zemindar or proprietor. The Maharaja then in July 1908 granted a Mokarari lease of the land to the former Ghatwal, Thakur Das Laik, who thus ceased to be a Ghatwal and became an ordinary tenure-holder. Subsequently, but before the expiration of 12 years from the date of the resumption, the tenure was put up for sale in execution of a decree for arrears of rent obtained by the Maharaja against Thakur Das and the plaintiff became the purchaser. The defendants in the suit (Bipradas Charan and others, called the Charans) held the lands as cultivating tenants under Thakur Das both before and after he (teased to be a Ghatwal. Upon their resisting the plaintiffs' attempt to obtain actual possession, the plaintiff caused notices to be served upon them under Section 167 of the Bengal Tenancy Act, purporting to annul their interests as being incumbrances within the meaning of Section 161. Having done so, he brought the present suit to eject them. Their case is that being occupancy Raiyats, their interests are 'protected' interests.
2. It should be mentioned that, so far as I can gather from the somewhat confused statement of the Court below, the land to which the appeal relates forms part of a larger area which before resumption by Government was held in common by nine Ghatwals and a Shadial. The share of the Shadial was six annas and the share of each Ghatwal one-ninth of ten annas. The defendants were tenants-in-common of a holding under the Ghatwals and Shadial which comprised an area of between 600 and 800 bighas. After the resumption the Maharaja granted to each Ghatwal and the Shadial a separate Mokarari lease of his share, but the land was not divided. Each Ghatwal thus came to hold his one-ninth undivided share of ten annas of the whole as a separate tenure. The defendants also continued in joint possession of their holding, but as to the rent payable in respect of it. Thakur Das collected his share separately. It may be assumed in the present case that the defendants held a separate tenancy under Thakur Das to the extent of his share, whatever that share may be.
3. The District Judge in the lower Appellate Court has found that at the date of the suit the defendants and their ancestors had been in possession of this holding as cultivating tenants for about a hundred years at an unvaried rent of Rs. 33 odd per annum.
4. The only plots now in dispute are plots Nos. 5 and 6 of the plaint. The suit as regards plots Nos. 1 to 4 has already been finally disposed of.
5. A number of questions have been discussed in the Courts below, whether the plaintiff could sue without making the other Mokararidars parties to the suit, whether the interest of the Charans under the plaintiff is an 'incumbrance' within the meaning of Section 160 of the Bengal Tenancy Act and so forth. These questions have been decided by one Court or the other against the plaintiff but it may be assumed that they were wrongly so decided, and that they ought to have been decided in his favour.
6. The question which really emerges and requires consideration is this. The Charans are found to be Raiyats. They claim to be occupancy Raiyats and if the lands had not been Ghatwali lands, they would clearly be entitled to occupancy rights. Can such rights be acquired in Ghatwali lands? This was the question to which the argument before us was principally directed.
7. Under Section 181 of the Bengal Tenancy Act, nothing in the Act is to affect any incident of a Ghatwali or other service tenure.' The precise effect of this provision has occasioned some doubt.
8. The argument for the Charans is that whatever may be its effect on the present law there is nothing in Act X of 1859 or in Bengal Act VIII of 1869 to prevent occupancy rights being acquired or enjoyed in Ghatwali land. The Charans, it is said, acquired such rights before the Bengal Tenancy Act came into force and Section 181 cannot operate to take away rights which had already been acquired. On the contrary, if occupancy rights could be acquired under the Acts of 1859 and 1869, Section 181 would have no application to rights in existence at the time it was enacted and such rights would be preserved by Section 19.
9. On the other hand the learned Pleader for the plaintiff contends that it has been held by this Court in the cases of Mohesh Majhi v. Pran Krishna Mandal 1 C.L.J. 138 and Upendra Nath Hazra v. Ram Nath Chowdhry 33 C. 630 that occupancy rights cannot exist in Ghatwali land. The decision, however, of Mitra, J., in the former case appears to have been confined to the acquisition of occupancy rights in Ghatwali land after the passing of the Bengal Tenancy Act and was so understood in Gouri Kanta Mukhopadhaya v. Ram Gopal Mukhopadhaya 2 C.L.J. 379. In Upendra Nath Hazra v. Ram Nath Chowdhry 33 C. 630 the point whether occupancy rights had been acquired by the appellants before the Bengal Tenancy Act came into force, was apparently neither raised nor considered. Sir Francis Maclean, C.J., no doubt says, after citing Mohesh Majhi's case 1 C.L.J. 138, that upon principle, having regard to the nature of Ghatwali lands, the acquisition of occupancy rights in these lands is inconsistent with the incidents of such tenures.' But he supports this view by reference to Section 181 of the Bengal Tenancy Act and does not refer to the fact that that section had no counterpart in the earlier Acts.
10. In Babu Lal Sheikh v. Purna Chandra Babu 4 Ind. Cas. 737 : 10 C.L.J. 602 Sir Lawrence Jenkins, C.J., expressly refused 'to express any opinion as to whether or not an occupancy right can be acquired in land held under Ghatwali tenure.'
11. In Ram Kumar Bhattacharjee v. Ram Newaj Rajguru 31 C. 1021 : 8. C.W.N. 860 Geidt and Mookerjee, JJ., held that rights of occupancy might be acquired in Chaukidari Chakran lands under Section 6 of Act X of 1859 and Section 6 of Bengal Act VIII of 1869. There seems no reason why Ghatwali lands should be differentiated from Chaukidari Chakran lands in this respect.
12. The case of Mrittunjoy Roy Chowdhury v. Kenatullah Narya 5 C.L.J. 53 : 11 C.W.N. 46 also relates to Chaukidari Chakran lands. The question there arose in a form which renders the case of doubtful assistance to either side, but the learned Judges (Ghose and Caspersz, JJ.) seem, at least in one part of their judgment, to take it almost for granted that where the service-holder's interest may be regarded as that of a middleman, occupancy rights may be acquired by the cultivating Raiyats even under the Bengal Tenancy Act. No reference, however, is made to Section 181 or to Mr. Justice Mitra's decision.
13. The question on the authorities seems to divide itself into three parts:
(1) Whether occupancy rights are inconsistent with the nature of Ghatwali tenures and their incidents according to the general principles of law applicable to the topic.
(2) Whether irrespective of the answer to question (1) the Acts of 1859 and 1869 conferred on the Raiyats of Ghatwali land statutory rights of occupancy.
(3) Whether, if questions (1) and (2) be answered in the affirmative, Section 181 of the Bangal Tenancy Act has had the effect of depriving the Raiyats, from the date of the passing of the Act, of any further opportunity to acquire occupancy rights.
14. I have not complicated the matter by referring to the possible existence in particular places of local customs modifying the general law or the tenancy law.
15. In the present case it is fortunately not necessary for us to consider the first or the last of the above three questions. At any rate Section 181 does not take away any rights of occupancy acquired or enjoyed under the Acts of 1859 and 1869. The only question we need consider is the second, and it seems to me that there is sufficient authority in the cases I have cited for saying that at any rate from 1859 to 1885 Ghatwali lands were subject to the acquisition of occupancy rights.
16. On the question of fast both the Courts below have found that the Charans were in possession as cultivating Raiyata under the Ghatwal for more than twelve years before 1885. They, therefore, acquired occupancy rights and the interest so acquired continues to the present day and is a protected interest which the plaintiff cannot annul.
17. The result is that, in my opinion, the decrees of the Court below dismissing the suit, so far as it relates to plots Nos. 5 and 6, should be affirmed and this appeal dismissed with costs.
18. I agree.