Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Miajan vs Minnat Ali And Ors. on 6 July, 1896
Equivalent citations: (1897) ILR 24 Cal 521
Author: M A Hill
Bench: Macpherson, Hill


Macpherson and Hill, JJ.

1. The Lower Appellate Court is, in our opinion, wrong in the view which it has taken of the plaintiff’s position. The facts are shortly these: There was a certain putni taluk subject to which there was a raiyati holding held by one Sameer. The talukdars obtained a decree against him for arrears of rent, brought the holding to sale, and purchased it themselves. After their purchase they sold it to the plaintiffs for a sum of Rs. 230, the rent payable being the rent which had been paid by the previous holder.

2. The defendants had, prior to the sale in execution of the rent decree, purchased a portion of the holding from the defaulting tenant, and they oppose the plaintiff in getting possession of the land.

3. The plaintiff asks that possession may be given to him on the strength of his purchase of the raiyati holding.

4. The Lower Appellate Court holds that what was sold at the execution sale was the occupancy right; that that right and the holding were extinguished when the landlords purchased; that, in point of fact, they purchased nothing, and that consequently the plaintiff took nothing by his purchase from them.

5. That, we think, is an erroneous view of the position of the parties. Assuming that Sameer had a right of occupancy in the land, there is nothing in the law which prevented the landlords from purchasing an occupancy holding. What the law does say is that if the landlords do, as landlords, purchase such a holding the right of occupancy shall cease to exist. In the case of Jawadul Huq v. Bam Das Saha ante p. 143 decided a few days ago by a Division Bench of this Court under Section 15 of the Letters Patent, it was held, with reference to the second clause of Section 22, that if one of several co-sharers purchase an occupancy holding, the purchase did not put an end to the holding, but that the holding remained divested of the right of occupancy. In the same way, under Clause 1 of Section 22, we think that the effect of a purchase of an entire occupancy holding by the landlords is not necessarily to put an end to the holding but to divest it in their hands of the right of occupancy, if any, which is attached to it. The defendants in the present case stand in no higher position than the defaulting tenant; they were bound by the sale, and have no existing right, and it is conceded that they could not resist the landlords in taking possession of the land. It seems to us unnecessary to consider the exact nature of the right which the plaintiff acquired by his purchase. That is a matter to be decided between him and his vendors. If his vendors acquired a right as against the defendants to this holding and to khas possession of it, there is nothing to prevent their giving the holding to the plaintiff and conferring on him the right to hold it as their tenants. We know of no law which prevents landlords from purchasing a holding and disposing of it. It does not seem to make very much difference whether they being the landlords dispose of the old holding under its old name, or whether they dispose of it as a holding newly created. We think the Munsif was right in holding, that the effect of the kobala was to create the relationship of landlord and tenant as between the talukdars and the plaintiffs. It gives the plaintiff a right to the possession of the holding as their tenant and fixes the amount of rent payable for it. That being so, the appellant is entitled to eject the defendants, who have no right at all.

6. In this view of the case, the judgment of the Lower Appellate Court must be set aside and the decree of the first Court restored. The appellant will get his costs in both the Courts.

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