ABDUL HAMID Vs. BORA TATAYA
HIGH COURT OF ORISSA
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Jagannadhadas, J. -
(1.) Defendant 1 is the applt in this 2nd appeal. The appeal arises out of a suit for ejectment filed by the pltf against defts 1 and 2 in respect of a homestead land, .015 acre in. extent and appertaining to plot 236 in Cuttack town. Plot 236 out of which the suit-plot has been carved out is a homestead plot in respect of which the pltfs have been recorded in the settlement records as Chandnadars. Deft 2 obtained a lease of the suit-plot from the pltfs and has been in possession thereof for a considerable period of time, for over 20 years according to the pltf, but according to deft for over 40 years. Deft 2 had admittedly erected a house on it & has been recorded in the current settlement record-of-rights as a Darhandnadar. On 30-6-45, deft 2 sold the land with the superstructure thereon to deft 1. Pltf accordingly filed the suit for ejectment against both defts 1 & 2 on 5-9-45. It is the pltf's case that deft 2 was a mere tenant-at-will under him & that he had no right to make any transfer without his consent. Such consent for the transfer in favour of deft 2 not having been obtained, he was entitled to evict the defts &. re-enter on the land. Deft 2 was 'ex parte'. Deft 1 alleged that deft 2 was not a mere tenantat-will under the pltf, but that he was a permanent tenant or acquired permanency rights He denied that deft 2's rights were not transferable without the consent of the pltf. The Cts below have concurrently held that the pltf is entitled to a decree for ejectment. Hence the; 2nd appeal by deft 1.
(2.) In the trial Ct, the contesting deft set up that deft 2 was admitted to the tenancy under a document giving him a permanent right of occupancy & also alleged that the ejectment suit was not maintainable as there was no proper notice to quit. The alleged written lease was found against & the notice to quit has been found to be sufficient in law. These questions have not been reagitated before us, but it is necessary to note that the deft has not set up the existence of any custom by which deft 2 had permanency rights in his tenancy or a right to transfer his. interest in the Iand without the consent of the pltf. The lower-appellate Ct in confirming the decree granted by the trial Ct, stated as follows: "A Dar-Chandnadar is a mere tenant-at-will and it is the settled principle of law that a. Dar-Chandnadari right is not either transfer & based its decision on this view of the law. The point raised in this appeal is that this assumption of the learned Judge is erroneous & that in any case the Orissa Tenancy Amendment Act of 1946, i.e., Act X (10) of 1946 which came into force when that appeal was pendingtaken with the Orissa Act XXXII (32) of 1947 has made a change of the Law in this respect & that the lower appellate Ct has not noticed this change.
(3.) In 'Dulai Dei v. Chema Das', S. A. 156/37 (8 Cut. L. Notes 6), his Lordship Fazl Ali J. stated as follows: "It is now well-settled that a Chandnadar himself has only a non transferable interest & it follows that a Dar-Chandnadar also cannot transfer his right". This appears to justify fully the assumption made by the learned Judge of the lower appellate Ct in the passage above extracted from his judgment. It is true that there is no discussion of this question in the judgment of Fazl Ali, J., but this was so presumably because the legal position was considered so well established that it could not admit of a contrary argument. It has no doubt been held in 'Johabaj Khan v. Sri Krishna De', AIR (23) 1936 Pat, 29: (15 Pat 187 FB) that the burden lies upon the landlord to prove usage or custom in proof of his right to eject a Chandnadari tenant if he wants to maintain ejectment against him. But so far as transferability of the Chandnadari right or the DarChandnadari right is concerned, no case has been brought to my notice which conflicts with the view above stated by his Lordship as being the settled law. On the other hand, cases in 'Chintamani Raut v. Sri Ram Chandrakar', AIR (21) 1934 Pat 422 : (149 IC 805); 'Mt Haliman Bibi v. Mohd. Tajamul Hussain', AIR (26) 1939 Pat 504: (185 IC 250) and 'Safiruddin v. Tarak Nath', AIR (36) 1949 Pat 180: (14 Cut LT 12) establish the correctness of the proposition so far as the Chandnadars are concerned, & it would follow 'prima facie' that the same is the law as regards Dar-Chandnadars who are merely under-tenants of Chandnadars. In fact, & in fairness to Mr. Das Gupta, learned counsel for the applt, it must be said that he did not seriously maintain that, apart from proof of custom in any particular case, there are any reported decisions showing that a Chandnadari or Dar-Chandnadari right is transferable or that there is any general & well-recognised custom in this behalf.;
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