Tupsee Singh And Ors. vs Ram Sarun Koeri on 28 February, 1888

Calcutta High Court
Tupsee Singh And Ors. vs Ram Sarun Koeri on 28 February, 1888
Equivalent citations: (1888) ILR 15 Cal 376
Author: Wilson
Bench: Wilson, Tottenham, Pigot, O’Kinealy, Ghose


Wilson, J.

1. (Pigot, O’Kinealy, and Ghose, JJ., concurring).–This is a suit brought by a landlord against his tenant to eject him from certain lands, in respect of which he alleged that he had given a notice to quit. The service of the notice has been found as a fact. But the defendant resists his landlord’s claim to eject him on the ground that he is entitled to a right of occupancy in the land in dispute. Under the law in force prior to the Bengal Tenancy Act, 1885, the defendant would not have had a right of occupancy.

2. The facts of the case are these : The defendant is a settled ryot, within the meaning of Section 20 of the Bengal Tenancy Act, 1885, of the village within which the lands in dispute are situated. The suit was filed in June, and the written statement in July, 1885. The Bengal Tenancy Act came into operation on the 1st November, 1885. The ease was decided by the Munsif in January, 1886. The defendant has been a tenant of the land in dispute from before the 2nd of March, 1883, down to the bringing of the suit. The question that arises is whether, by reason of Section 21 of the Bengal Tenancy Act, the defendant is to be held to have a right of occupancy in the lands in dispute. The same question arose in Jogessur Das v. Aisani Koyburto 14 C. 558, and Mitter and Beverlay, JJ., answered it in the affirmative. The learned Judges before whom this case came on second appeal were disposed to dissent from that view, and they accordingly referred the case to a Full Bench.

3. The words that we have to construe are those of Section 21, Sub-Section 2. The Sub-section is this : “Every person who, being a settled ryot of a village within the meaning of the last foregoing section, held land as a ryot in that village at any time between the 2nd day of March, 1883, and the commencement of this Act, shall be deemed to have acquired a right of occupancy in that land under the law then in force; but nothing in this Sub-section shall affect any decree or order passed by a Court before the commencement of this Act.” I accept the proposition contended for by the learned Counsel for the appellant in his able argument, that an enactment affecting rights of property is not to be so construed as to give it retrospective effect, unless the intention that it shall have such effect clearly appears. But I think in the section under consideration such an intention is plainly expressed. The first part of the section deals with the case of lands held by a settled ryot at or after the date from which the Act speaks, that is to say, the date at which it came into operation, and it declares that such holding shall give a right of occupancy. Sub-section 2 deals with the case of lands held by a settled ryot at an earlier period, namely, between the 2nd of March 1883 and the commencement of the Act, and it says that such holding shall be deemed to have given a right of occupancy. The Sub-section is therefore in express terms retrospective.

4. It was further contended that, admitting this to be so, effect should not be given to the Sub-section in a case pending before the commencement of the Act, and the learned Judges who referred the case to us were disposed to adopt this View. I am quite alive to the inconveniences that arise when a suit has to be decided according to a law not in force when the suit was brought. But I think the language of the section is too clear to enable us to avoid the construction which entails those inconveniences. The retrospective enactment; is quite general in its terms. And the exception from its operation, expressly made be the last words of the section, in the case of decrees or orders passed before the commencement of the Act, seems to me to show that pending suits were not to be excepted.

5. I should answer the question referred to us in the affirmative, and dismiss the appeal with costs.

Tottenham, J.

6. As I understand the rest of the Bench to be unanimous in the opinion expressed by Mr. Justice Wilson, I too assent to it.

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