1. This second appeal raises a simple question of law, namely, whether the defendant has acquired an occupancy right and retained it even although the mokarari right, which he has also obtained, is extinguished by operation of Section 16 of Act VIII of 1865. The learned Munsif was perfectly right in saying that the case of Nil Madhub Kurmokar v. Shiboo Pal 13 W.R. 410 : 5 B.L.R. App. 18 was clear authority for the proposition that he did, and the learned District Judge in the lower Appellate Court refers to a later case in which this was followed. That case is the case of Emam Ali Mestory v. Ator Ali Khan 22 W.R. 133 and in the case of Nil Madhub Kurmokar v. Shiboo Paul 13 W.R. 410 : 5 B.L.R. App. 18 the learned Judges had referred to a still earlier case reported as Pureeag Singh v. Purtap Narain Singh 11 W.R. 133. As far as we have been able to ascertain these authorities have never been dissented from. The learned District Judge thinks that the case of Jogeshwar Mazumdar v. Ahed Mohamad Sirkar 3 C.W.N. 13 lays down a principle which, as it has been followed in an unreported ruling of Ghose and Pargiter, JJ., and applied to Act VIII of 1865, must govern his decision in the present case.
2. As to this we have in the first place to point out that the decision in Jogeshwar Mazumdar v. Abed Mahomed Sirkar 3 C.W.N. 13 being under Regulation VIII of 1819 which did not recognize-occupancy rights not then in existence, cannot be any authority in respect of the present case where occupancy right could have been and was acquired under Act X of 1859. The learned Judges based their decision on the express finding that the property was lease-hold property and, therefore, the lease was an incumbrance. They nowhere say that an occupancy right is an incumbrance; and on looking to the unreported decision upon which the learned Judge relies, we are surprised to find that it is a summary dismissal of an appeal on the ground that there was no sufficient room to interfere. The then Judicial Commissioner of Chota Nagpur had derided of case of a somewhat similar nature to the present, case on the principle laid down in Jogeshwar Mazumdar v. Abed Mohamed Sirkar 3 C.W.N. 13 but he had not had his attention drawn to any of the cases which we have cited in the Weekly Importers. It, cannot, therefore, be said that the Judges of this Court in summarily dismissing the appeal had those authorities before them or that they ever considered them or dissented from them. The weight of authority, therefore, is absolutely on the side of the defendant in this case.
3. The judgment and decree of the lower Appellate Court most, therefore, he set aside and that of the learned Munsif restored with costs in both Courts.