Appeal No. 2196 of 1912.
1. In this appeal the plaintiff is the appellant. He instituted the present suit for declaration of title to, and recovery of possession over, a piece of land against the defendants on the ground that they are trespassers.
2. In order to understand the grounds urged in support of the present appeal, it isnecessary to advert to some facts that happened before the institution of the present suit, and these facts are:
3. In 1883 the defendants 1st party were the lessees of a share in Mouza Satmalpore and while they were lessees, they obtained possession of the land in suit under kurtowlee leases executed by the tenants of the mouza. By this arrangement the 1st party defendants acquired the right of under-raiyats.
4. In 1906 the landlord brought rent suits against the defendants 2nd party who are the tenants and obtained ex partee decrees and in execution of those decrees put up the holdings of those tenants to sale and himself purchased them and thereafter took delivery of possession. There wag a criminal proceeding under Section 145 of the Code of Criminal Procedure between the landlord and the defendants 1st party and in this proceeding the latter were found to be in possession, and hence the present suit.
5. The holdings purchased by the landlord were occupancy holdings and the landlord claims the lands of the holding as a proprietor thereof, on the ground that the entire interests of the landlord and the raiyat having united in him, he became a proprietor under Section 22 of the Bengal Tenancy Act and that in consequence of the sale of the holding in execution of rent decrees, the raiyati interest of those tenants ceased to exist and with it the under-raiyati interest of the defendants 1st party and they are, therefore, trespassers and liable to be ejected.
6. The case set up by the defendants 1st party is described in paragraphs 8 and 9 of their written statements and they are these:
7. Para. 8--'That these defendants have been in lawful possession over the land in suit for the past 20 years as tenants, and, therefore, the plaintiff is not entiled to eject them.'
8. Para. 9--'That the plaintiff has no legal claim to mesne profits but only to rent, which these defendants have ever been ready to pay and have duly tendered.'
9. The Munsif gave a decree to the plaintiff, whereupon the defendants 1st party appealed to the District Judge. The appeal was allowed and the suit was dismissed. The lower Appellate Court held that the status of the defendants 1st party was that of occupancy raiyats. The lower Appellate Court further held that the ex parte rent decrees were obtained mala fide.
10. The grounds urged on behalf of the appellant are: (1) that there being no allegation on the part of the defendants 1st party and no proof on their behalf that the rent decrees were obtained mala fide, the lower Appellate Court erred in holding that those decrees were mala fide; (2) that defendants 1st party, having entered into possession of the land as under-raiyats and having continued in possession of the land either in the same capacity or as trespassers, could not acquire any right of occupancy.
11. It appears that the original tenants allowed the defendants 1st party to remain in possession of the land even after the expiry of the period mentioned in the Kurtowlee leases.
12. I am of opinion that on the above facts no decision is necessary as to whether the lower Appellate Court should or should not have held that the ex parte rent decrees were obtained mala fide.
13. The decision of the present appeal rests on a finding as to the status of the defendants 1st party. On the admitted facts I find that although the defendants 1st party may not have acquired a title to the land as high as that of an occupancy raiyat, yet there can be no doubt that these defendants were holding the land as under-raiyats for the whole period from the execution of the kurtowlee leases down to the time when these holdings were sold and purchased by the plaintiff landlord in execution of his decrees for rent. The next question is what is their status after the sale of the holdings. I am of opinion that although the raiyati interest became merged into the superior interest of the landlord by operation of law, the defendants 1st party's status continued as that of an under-raiyat till evicted according to law.
14. When the appellant relies on the provisions of Section 22 of the Bengal Tenancy Act, he must rely ou the whole provision of that section. There is a proviso in that section, namely, that nothing in that sub-section shall prejudicially affect the rights of any third person.
15. There was a preliminary objection that the present appeal is defective inasmuch as Mr. Wilson, one of the members of the 1st party defendants, is not represented. The objection does not require any decision as I am of opinion that the appeal should be dismissed.
16. The appeal is dismissed with costs.
17. Richardson, J.--I agree.
18. This judgment governs the other Appeals Nos. 3049 to 3052 of 1912.