S.A. No. 1287 of 1909
This appeal arises out of a suit under Section 106 of the Bengal Tenancy Act. The case for the plaintiff, as laid before me, is as follows. The lands in suit originally belonged to four tenants; Suits for rent were brought against them by the ijardar in possession of the village. He obtained decrees and sold the holdings in execution. Three of these holdings he purchased himself. The fourth, that of Jitu Mauji, was purchased by the plaintiff. Thereafter, the ijardar sold the jote right in the three holdings that he had purchased to the plaintiff. The plaintiff contends, with respect to these four holdings, that he is a raiyat and the defendants are his under-raiyats. In the record-of-rights he was recorded as a tenure-holder and the defendants as raiyats under him. He disputed the correctness of this entry. Hence this suit. The defendants supported the case of the plaintiff in the Courts below. But, notwithstanding this, the Assistant Settlement Officer, in the first instance, and the learned District Judge in appeal held that the entry in the record-of-rights was correct and dismissed the suit.
2. The plaintiff appeals to this Court. It appears to me that the judgment of the Courts below cannot be sustained. The learned District Judge proceeds upon Section 22, Sub-section 3 of the Bengal Tenancy Act, as it stood before the amendment of 1907. That subsection enacted that an ijardar could not acquire a right of occupancy in any land comprised in his ijara. It was held in Ramrup Mahto v. H. Manners 4 C.L.J. 209 that this sub-section did not refer to cases where the ijardar had acquired the land by purchase. This view has been dissented from in Raghubar Mahto v. H. Manners 13 C.L.J. 568 : 11 Ind. Cas. 389. But, even if it is correct, the sub-section cannot, in my opinion, be considered as laying down that when an ijardar purchased a holding in execution of a decree under the Bengal Tenancy Act, as it stood before it was amended, the tenancy ceased to exist. It was held in the leading case of Barn Mohan Pal v. Sheikh Kachu 9 C.W.N. 249 : 1 C.L.J. 1 : 32 C. 386 that in cases coming under the preceding sub-sections of the section, although the occupancy-right came to an end, the holding itself did not cease to exist. It may well be that after the purchase by the ijardar the occupancy right came to an end. But I am not prepared to say that the tenancy itself came to an end, or that it, could not he transferred to the plaintiff by the ijardar. It is stated in the plaint that what was sold to the plaintiff was the purchased jote right of the ijardar and this statement is not controverted in any way. It appears to me, therefore, that whether the plaintiff has occupancy-rights or not, he certainly purchased the interest of a raiyat and not that of a tenure holder. The view of the learned District Judge that the purchase from the ijardar did not convey occupancy rights to the appellant is not sufficient to justify the decision that the appellant is, therefore, a tenure-holder.
3. As regards the holding of Jitu Mauji Section 22 can have no application and it cannot be held that the appellant has any higher right in the land, covered by this purchase, than that which the original raiyats had. It seems to me, therefore, that on the facts found by the learned District Judge the plaintiff is a raiyat and is entitled to relief under Section 106 of the Bengal Tenancy Act.
4. This appeal has not been contested by any of the principal defendants. The Deputy Registrar has been appointed guardain ad litem of certain minors among the proprietors of the village. Bat he cannot in any way object to the relief which the plaintiff claims.
5. The appeal is decreed and the plaintiff is declared entitled to be recorded as a raiyat and to have the defendants recorded as under-raiyats in the record-of-rights.
6. In the circumstances of the case, the costs of this appeal need not be allowed. But he will get his costs in the lower Courts.
S.A. No. 1304 of 1909.
7. This appeal is governed by the judgment delivered in Appeal from Appellate Decree No. 1287 of 1909 and the same relief will be allowed to the appellant.