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Anowor Ali Khan and ors. Vs. Azizor Rahaman Khan - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.510
AppellantAnowor Ali Khan and ors.
RespondentAzizor Rahaman Khan
Cases ReferredRamlal Sukul v. Bhela Gazi
Excerpt:
co-sharer landlords - occupancy holding, purchase of, by one of several co-sharer landlords, effect of--purchaser, whether settled raiyat--auction-purchaser at revenue sale, rights of. - .....property being sold for arrears of government revenue. the present appellants were some of the co-sharer landlords of the property and it is not disputed that the landlord's interest passed to the auction-purchaser. but what has happened is this; prior to the sale, that is, more than twelve years before the sale, one of the co-sharer landlords had purchased the occupancy right of a raiyat in the land sought to be recovered in the present suit. now the decision of this court in the case of ram mohan pal v. sheikh kachu 32 c. 386 : 1 c.l.j. 1; 9 c.w.n. 249 (f.b.) establishes that when a co-sharer landlord acquires the occupancy right of a raiyat, the co-sharer landlord holds the raiyat's interest without the right of occupancy. that is the decision of a full bench and the decision of a.....
Judgment:

Ernest Fletcher, J.

1. The defendants in this case appeal against the decision of the learned Subordinate Judge of Chittagong dated the 3rd February 1919, whereby the learned Judge affirmed the decision of the Munsif of Patiya, dated the 6th August 1917. The main point raised in the appeal can be stated in a few words. The plaintiff brought the suit for Khas possessions on the allegation that he purchased the property at an auction sale held under the provisions of Act XI of 1859, the property being sold for arrears of Government revenue. The present appellants were some of the co-sharer landlords of the property and it is not disputed that the landlord's interest passed to the auction-purchaser. But what has happened is this; Prior to the sale, that is, more than twelve years before the sale, one of the co-sharer landlords had purchased the occupancy right of a raiyat in the land sought to be recovered in the present suit. Now the decision of this Court in the case of Ram Mohan Pal v. Sheikh Kachu 32 C. 386 : 1 C.L.J. 1; 9 C.W.N. 249 (F.B.) establishes that when a co-sharer landlord acquires the occupancy right of a raiyat, the co-sharer landlord holds the raiyat's interest without the right of occupancy. That is the decision of a Full Bench and the decision of a Full Bench is binding upon me. It is said that it is quite true that that decision must be followed but, after the purchase of the occupancy rights the co sharer landlord continued in occupation for more than twelve years and although he could not be in possession as against himself so as to acquire a right of occupancy, he could become a settled raiyat of the village and, therefore, would not be liable to be evicted from his holding. The direct point has not been the subject of any judicial decision, but a point very close to it was decided by a Bench of this Court in the case of Ramlal Sukul v. Bhela Gazi 6 Ind. Cas. 370 : 37 C. 709 : 14 C.W.N. 814 and the argument that was put forward by the learned Vakil on behalf of the appellants was, not that the co-sharer landlord had become a settled raiyat of the village prior to the auction sale under the provisions of Act XL of 1859, but that immediately following the sale by the Government under the provisions of the Act the defendants were entitled to set up this 12 years' possession prior to the sale and claim as a settled raiyat of the village, and that such a right was acquired and could only be annulled at the option of the purchaser within a reasonable time and that the time for annulling that interest had long since expired. I do not agree with this view. I think the observations in the case of Ramlal Sukul v. Bhela Gazi 6 Ind. Cas. 370 : 37 C. 709 : 14 C.W.N. 814 above referred to apply equally well to a landlord acquiring interest as an occupancy raiyat or in any other character against himself, and I do not think that a landlord by being in possession of his own property can acquire an interest against himself as a settled raiyat of the village or as any raiyat of any other village. The result is that I agree with learned Judges of the Courts below that the plaintiff is entitled to recover possession of this land which he purchased.

2. The other point involved in the appeal is the question of mesne profits. It is conceded by Mr. Huq who appears for the plaintiff respondent that the purchaser at the auction sale-having an option to treat this interest in the defendant as void, in not entitled to recover mesne profits prior to the institution of the suit. The judgment and decree of the lower Appellate Court will, therefore, be varied by directing that mesne profits be recovered by the plaintiff only from the date of the institution of the suit down to the date of the actual delivery of possession or until the expiry of three years from the date of the decree as ordered by the primary Court. As both parties have partly succeeded in the appeal, I make no order as to the costs in this Court. The order as to costs made by the lower Appellate Court will stand.


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