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Calcutta High Court
Ichhamoyee Debbe, And On Her Death … vs Krishna Kamini Debee And Ors. on 16 January, 1913
Equivalent citations: 18 Ind Cas 377
Bench: H Carnduff, Chapman


1. This appeal is preferred against the decision of a suit brought by a Hindu widow for recovery of possession of certain plots of land and for declaration of title thereto. The original plaintiff is now dead, and the appellants before us are her sons, who have been substituted in her stead.

2. It appears that the defendants were in possession under a permanent lease, which was granted to them in the month of March 1873, by one Bama Sundari, the sister of the original plaintiff. It has been held that Bama Sundari had only a life-interest in the land, and that the permanent lease granted by her to the defendants was invalid; and that decision has not been assailed. The lower Appellate Court, however, found that the defendants had nevertheless acquired an occupancy right, they having been in possession for more than twelve years, and that they were, therefore, not liable to be evicted.

3. The principal point taken before us is that, as the defendants claimed to be raiyats holding at fixed rates, they could not acquire the lower rights of mere occupancy raiyats; and, in support of this contention, reliance is placed on the decision of this Court in Bhutnath Naskar v. Monmotho Nath Mitra 13 C.W.N. 1025; 2 Ind. Cas. 675; 11 C.L.J. 98 which was a Letters Patent Appeal. But a reference to that case, and specially to the judgment of the learned Chief Justice in it, makes it quite clear that the decision is no authority whatever for the proposition, to our minds a startling one, that a person, who claims the higher status of a raiyat at fixed rates, cannot, if that claim is disallowed, fall back upon and establish, if he can, the lower status of an occupancy raiyat. Moreover, the arguments, which were put forward by two of the learned Judges in that case and on which the appellants rely, proceeded, not upon general principles, so far as we can see, but upon the special provisions and frame-work of the Bengal Tenancy Act of 1885. But the permanent lease, with which we are here concerned, was, as we have observed, granted in March 1873; the Bengal Tenancy Act did not come into force till the 1st November 1885; and thus it would seem that the occupancy right, which the defendants are said to have acquired, was acquired under the former law and is saved by the special provisions of Section 19 of the Act of 1885. That being so, the case is still less an authority on the point now before us, and we have no hesitation in saying that, in our view, the learned District Judge was right.

4. There remain two smaller points relating to two specific parcels of land included in the land in suit, first, as regards a plot of 6 cottas, it is contended that as that was purchased by one of the defendants from the original plaintiff, the appellants are entitled to it as her reversionary heirs. Now, it seems to us quite clear that the appellants, who stand in the shoes of the original plaintiff, cannot, in this suit; set up any such right. Their cross-appeal in respect of this plot of land was, therefore, rightly dismissed as being without substance.

5. The second plot referred to is one of 11 cottas, and it is contended that, as this plot was purchased by one of the defendants from Rajabullav, a lakherajdar, and the plaintiffs do not question the lakheraj right of Rajabullav and his transferee, they ought to be given a declaration as to their tenant right in the plot. As regards this, all we need say is that this was not the case set up by them in their cross-appeal in which the lakheraj right of Rajabullav was expressly denied. We cannot, therefore, listen to this contention now.

6. The result is that this appeal is dismissed with costs.

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