1. The plaintiff is the appellant in this case and in the suit out of which this appeal arises he sought to recover possession on declaration of his title of certain land which was claimed by the defendant to appertain to her under-raiyati holding in which she had acquired occupancy rights. It appears that this under-raiyati holding was held under a man named Bepin Chandra Paramanik against whom the landlord, Sobha Dutt, instituted rent Suit No. 402 of 1932 for the recovery of arrears of rent. The suit in question was in respect of the years 1335 to 1338 B. Section As regards the years 1335 to 1337 B.S. Sobha Dutt was admittedly an eight anna landlord of Bepin Chandra Paramanik's holding. She acquired the remaining eight annas interest on 13th January 1931 so that she became a sixteen annas landlord for the year 1338 B.S. She obtained a decree in rent Suit No. 402 of 1932 and in execution of this decree she put the tenant's holding to sale. The plaintiff purchased this holding at the civil court sale which was held on 17th May 1933. The sale was confirmed on 24th June 1933 and the plaintiff obtained delivery of possession on 7th October 1933. He then issued a notice under Section 167, Ben. Ten. Act, for the annulment of in cumbrances, but the defendant was unwilling to vacate the land in suit on the ground that she had acquired occupancy rights therein and that her interest in the holding was consequently protected under Section 160(d), Ben. Ten. Act. She further claimed that her interest was protected as she had a dwelling house on the land. The plaintiff thereupon instituted the suit out of which this appeal arises and the main point urged by the defendant, in addition to those which have already been mentioned, was to the effect that the decree obtained by Sobha Dutt did not operate as a rent decree and that in those circumstances all that passed to the plaintiff at the civil court sale on 17th May 1933 was the right, title and interest of the former tenant Bepin Chandra Paramanik. The first Court held that Sobha Dutt's decree operated as a rent decree and, with regard to the respondent's contention that her interest was protected under Section 160, Ben. Ten. Act, the learned Munsif decided that she was not entitled to protection under Section 160(c) of the Act but was protected under Section 160(d). A remand was directed after an appeal to the learned Subordinate Judge and, after remand, it was held by the lower Appellate Court that Sobha Dutt's decree did not operate as a rent decree. It was further held that the respondent was not protected at all under Section 160 Ben. Ten. Act, but as Sobha Dutt's decree did not operate as a rent decree, the plaintiff was not entitled to recover khas possession of the respondent's holding.
2. The main question for consideration in connexion with this appeal is whether or not the decree obtained by Sobha Dutt in rent Suit No. 402 of i1932 operates as a rent decree. If this decree has the effect of a rent decree, the holding is liable to sale under Section 65, Ben. Ten. Act, and it follows that the purchaser of that holding takes it with power under Section 159 of the Act to annul incumbrances. Section 65, Ben. Ten. Act, is in the following terms:
Where a tenant is a permanent tenure-holder, a raiyat holding at fixed rates or an occupancy-raiyat, he shall not be liable to ejectment for arrears of rent, but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.
3. In a case, in which the landlord is not the sole landlord, but is a co-sharer with other persons, he can only institute a rent suit in accordance with the provisions of Section 148-A of the Act, the material portion of which for the purpose of this case is Sub-section (1) which provides that:
A co-sharer landlord may institute a suit to recover the rent due to him in respect of his share in a tenture or holding, by making all the remaining co-sharer landlords parties defendant to the suit, and claiming that relief be granted to him in respect of his share of the rent against the entire tenure or holding.
4. The object of the above provision of the law is apparently (1) to ensure that a suitable opportunity is afforded to all co-sharer landlords to recover against the holding any arrears of rent which may be due to them in respect of their shares and (2) to secure the tenant against multiplicity of rent suits by his landlords in respect of the same period. In this case it is argued that Sobha Dutt did not comply with the provisions of Section 148-A of the Act inasmuch as she did not make her co-sharers parties to the rent suit in respect of the years 1335 to 1337 B.S. in which she was merely an eight anna co-sharer landlord of the holding. It must however be remembered that she became the sole landlord on 13th January 1931 and she, therefore, had no co-sharers as regards this holding when she instituted Rent Suit No. 402 of 1932 Section 148-A, Ben Ten. Act, merely requires a co-sharer landlord who desires to institute a rent suit to make all the remaining co-sharer landlords parties defendants to the suit, but, in the ease with which we are now dealing, Sobha Dutt was not a co-sharer landlord but the sole landlord at the time when she instituted the rent suit and there were consequently no remaining co-sharer land-lords whom she could have made parties to the suit in accordance with the provisions of Section 148-A, Ben. Ten. Act. Further in view of the principles laid down by the Judicial Committee of the Privy Council in Arthur Henry Forbes v. Bahadur Singh (1914) 1 A.I.R. P.C. 111 Sobha Dutt's former co-sharers had no right to bring the holding to sale after they had parted with their interest as landlords. In that case their Lordships observed:
To acquire the right which the Section gives, (that is Section 65, Ben. Ten. Act), not only the person obtaining the decree must be the landlord at the time, but the person seeking to execute it by sale of the tenure must have the landlord's interest 'vested' in him. In other words, the right to bring the tenure or holding, as the case may be, to sale exists so long as the relationship of landlord and tenant exists. It seems to their Lordships dear on an examination of the different Sections bearing on the subject that the right to bring the tenure or holding to sale under Section 65 appertains exclusively to the landlord; and that a person to whom certain rents are due, and who obtains a decree there for after he has parted with the property in which the tenancy is situate, has no such right.
5. Their Lordships then continued as follows:
The ex-landlord is an outsider, and whilst he can execute his decree against the debtor as a money decree, he has no remedy against the tenure itself. The learned Judges of the High Court seem to think that either from the nature of the debt being arrears of rent, or the decree being for arrears of rent, the tenure becomes ipso facto hypothecated so to speak for the debt; and that consequently the person to whom the debt is due, although he has ceased to be the landlord and is to all intents and purposes, so far as other rights and obligations under the law are concerned, a total stranger to the property with which those rights and obligations are inseparably connected, has the special remedy given to the landlord to recover arrears attached to the tenure. This conception of the legal position seems to their Lordships untenable, for the charge created by Section 65 is clearly in favour of the landlord.
6. It was on the basis of the above mentioned decision of the Judicial Committee in Arthur Henry Gorbes v. Bahadur Singh (1914) 1 A.I.R. P.C. 111 that a Special Bench of this Court decided in Krishnapada Chatterji v. Manadasunari Ghosh : AIR1932Cal321 that the principle of the statute is that only the landlord can bring the holding to sale and this involves that a sale held after his charge has ceased does not pass the holding as distinct from the tenant's right, title and interest therein.
7. As already pointed out, one of the main objects of Section 148-A, Ben. Ten. Act, as far as the co-sharer landlords are concerned, is to afford them an opportunity to recover the rent due to them against the holding, but it is clear that this Section can have no application in the case of a former co-sharer of the landlord who institutes a rent suit and such a person, in my view, has no right to be joined as a party to the suit if he has parted with his interest at the time when the suit is brought. If arrears of rent are due to him from the tenant his only remedy would be to recover the same by instituting an ordinary money suit but he has no remedy against the holding.
8. It is however argued on behalf of the respondent on the authority of Sheikh Jarip v. Ram Kumar De. (1899) 3 C.W.N. 747 and that of Mafizuddin Sardar v. Ashutosh Chukerutty (1910) 14 C.W.N. 352 that the decree obtained by Sobha Dutt can only be regarded as a money decree because she did not sue for the entire rent due from the tenants in respect of the years 1335 to 1338 B.S. It is however clear that the principle laid down in the above mention, ed cases would only apply in a case in which all the landlords were suing for arrears of rent or one or more of them was suing in the presence of the others. If on the other hand, there is only one landlord of the holding at the date of the institution of the suit there is nothing in the provisions of the Bengal Tenancy Act to prevent such landlord from instituting a rent suit of which the decree will be executable against the holding provided he sues for the entire amount of rent actually due to him, even although certain former co-sharers may have arrears of rent due to them in respect of some of the years for which the suit is brought. This was the principle which was adopted by the Patna High Court in Sarup Sahu v. Jagarnath Modi (1917) 4 A.I.R. pat. 493 That decision, it is true, had special reference to Section 158.B, Ben. Ten, Act, which has now been repealed, but the principles of the repealed Section have been restated in Section 148.A of the present Act. In view of the considerations mentioned above I am of opinion that the decree obtained by Sobha Dutt in Rent Suit No. 402 of 1932 operated as a rent decree and could therefore be executed against the holding.
9. It is, however, urged on behalf of the respondent that even if it be held that the decree was a rent decree, her interest in the holding is a protected interest under Section 160(d), Bengal Tenancy Act, as the findings are to the effect that the respondent had acquired under-raiyati occupancy rights in the holding by custom. Admittedly, under the law as it stood before Section 48-G was inserted in the Bengal Tenancy Act in 1928 an occupancy right acquired by an under-raiyat by custom would ordinarily be a protected interest under Clause (d), Section 160, Bengal Tenancy Act, as held by Sir George Rankin C.J. and Mr. C.C. Ghose J. in Sonatan Dafadar v. Daulat Gazi : AIR1932Cal571 . That decision related to a suit which had been instituted before the enactment of the Bengal Tenancy Amendment Act of 1928 and it, therefore, follows that Section 48-G of the amended Act could have had no application to the facts of the case which their Lordships were considering. They therefore held on a consideration of certain cases which are discussed in the judgment that, under the law as it stood before the passage of the amended Act, an under-raiyat who had occupancy rights might be entitled to protection under Section 160(d), Ben. Ten. Act. In the case with which we are now dealing the position is different. The suit was instituted in 1936 and the respondent's right with regard to the matter under discussion will be governed by the provision of Section 48-G, Ben. Ten. Act. Section 48.G (1) provides that:
Every under-raiyat who, immediately before the commencement of the Bengal Tenancy (Amendment) Act, 1928, had by custom a right of occupancy in any land, shall have a right of occupancy in that land.
10. Clause (2) states that 'every under-raiyat who has a right of occupancy in his holding shall have, as regards his immediate land, lord, all the rights and liabilities of a raiyat with a right of occupancy' in the manner set forth in certain specified portions of the Bengal Tenancy Act. Clause 3 of the Section is in the following terms:
The interest of an under-raiyat who has a right of occupancy in his holding shall not be deemed to be a protected interest under Clause (d), Section 160.
11. In this case it is argued that the respondent had in fact acquired occupancy rights by custom in the holding before the passing of the Bengal Tenancy Amendment Act of 1928 whereby Section 48-G was inserted in the present Act. It is, therefore, contended that, inasmuch as she had acquired these occupancy rights before Section 48-G was inserted in the Act, such rights cannot be our tailed with retrospective effect by the operation of a clause such as Clause (3), of Section 48-G. In support of this contention reliance is placed upon certain observations contained in the judgment of Viscount Haldane in Municipal council Sydney v. Margaret Alesanda Troy (1928) 15 A.I.R. P.C. 128 to the effect that generally speaking a statute conferring or dealing with substantive rights has no retrospective operation. It is true that the ordinary principle of construction of statutes is to the effect that statutes are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect be dearly intended and that it is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. The question, therefore, requires careful consideration as to whether or not the provisions of Section 48-G, Ben. Ten. Act, are sufficiently clear to deprive an under-raiyat of protection under Section 160(d), Ben. Ten. Act, to which he may have been entitled by virtue of his status before that Section became law.
12. As regards Clause (1) of the Section it is quite clear that any under-raiyat who had acquired occupancy rights by custom before the passing of the Act should have such occupancy rights in the land after the Act had come into operation but it is also clear that the Legislature intended that these occupancy rights should only be conferred upon an under-raiyat to the limited extent-mentioned in Clause (2). In Clause (3) it was expressly stated that the interest of an under-raiyat who had a right of occupancy would not be entitled to protection under Section 160 (d) of the Act. The use of the words who has a right in Clause (3) appears to me to make the matter quite clear. The use of these words can only mean that the clause related to under-raiyats who bad rights of occupancy either at the time when the amended Act came into operation or had acquired such rights while the Act was in force and it is apparent that the Legislature intended that, whatever the position of such under-raiyats might have been with regard to Section 160(d) as it stood before the passing of the Act, the mere fact that they had occupancy rights in their holdings would not be sufficient to give them protection under Section 160(d) of the Act after the insertion of Section 48-G, Ben. Ten. Act. I am, therefore, of opinion that the occupancy rights which the respondent had acquired in the holding cannot be regarded as a protected interest under Section 160 (d), Ben. Ten. Act. In this connexion it has been argued by the learned advocate for the appellant, that in any event the respondent would not be entitled to the benefit of Section 160(d) of the Act in view of the provisions of Section 47.A, Bengal Tenancy Amendment Act of 1938 which is in the following terms:
The provisions of this Chapter shall apply to all under-raiyats whether their tenancies were created before or after the commencement of the Bengal Tenancy Amendment Act of 1928.
13. This argument finds some support from the principle to which Maxwell refers in his book on the Interpretation of Statutes to the effect that
if a statute is in its nature a declaratory Act, the argument that it must not be construed so as to take away previous rights is not applicable.
14. In view, however, of my decision with regard to the applicability of Clause (3) of Section 48-G of the Act it is unnecessary to decide this point which was raised on behalf of the appellant with regard to Section 47-A, Bengal Tenancy Amendment Act, as inserted in the Act by the Bengal Tenancy Amendment Act of 1938. Finally, it is argued on behalf of the respondent that she is entitled to protection under Section 160(c) of the Act on account of the fact that she had a dwelling house on the holding. The findings on this point are to the effect that the dwelling house consists of some straw huts. In my view, having regard to the use of the words 'other permanent' in Section 160(c) of the Act, there can be no doubt that the dwelling houses which the Legislature intended to protect under this Section should be of a permanent character. The respondent's dwelling house merely consisted of temporary straw huts which, in my opinion, are not entitled to protection under Section 160(c) of the Act. In view of the considerations mentioned above this appeal must be allowed and the plaintiff's suit decreed. The parties will bear their own costs throughout. Leave to appeal under Section 15, Letters Patent, is refused.