Decided on July 11,1951

Pramath Nath Sarma And Anr. Appellant
Nareswar Keot And Anr. Respondents


Deka, J. - (1.) THIS appeal arises out of a suit brought by one Mohan Keot who has since been substituted by his legal heirs after his death, for declaration of his title as an occupancy tenant with respect to half a bigha of land (2 K. 10 lechas) - covered by Lakhiraj patta No. 1 of the Kamakhya Temple - and for a decree with respect to Rs. 203/5/- which represented the compensation paid by the Railway authorities for removal of some earth from the aforesaid area in the year 1948 The compensation money was paid through the Deputy Commissioned Kamrup to the two defendants who as Dolois represented the interest of the Kamakhya Temple to which the land belonged. The defendants admitted plaintiff's possession with respect to the land but contested the declaration of the plaintiff's title as occupancy raiyat as contemplated under the Assam Tenancy Act (Act III of 1935 and the right of the plaintiff to get any share of the compensation money which was paid by the Railway authorities for the removal of the earth. The learned Munsiff declared the plaintiff's right as an occupancy raiyat with respect to the land in suit and passed a decree for Rs. 3-5-0 only for compensation which represented the price of the crops as paid by the Railway authorities. Against this decree the pontiff appeled and the learned Subordinate Judge. L.A.D. who heard this appeal varied the decree with respect to the compensation and passed a decree in favour of the plaintiff, or more strictly his heirs, for a sum of Rs. 100 out of the sum of Rs. 200 originally paid by the silav authorities far the removal of earth from the land in suit. The Dolois (Managers' of the Kamakhya Temple who were defendants 1 and 2 have preferred this appeal against the decree passed by the Subordinate Judge, L.A.D.
(2.) THE learned Subordinate Judge in his judgment under appeal, finds that the plaintiff or his heirs (appellants before him) were occupancy tenants within the meaning of Section 13 of the Assam Tenancy Act and Under Section 14 thereof, they had only the right to we the land in any manner which did not materially impair the value of the land or render it unfit for the purpose of tenancy. He further held that the land in question was a trust/property and the respondents (defendants 1 and 2) - -as trustees were bound to see to the use of the land in a manner so that the corpus aid not suffer. He further found that there was no evidence to show the extent of the damage caused apparently, to the tenant) - by the cutting and removal of the earth from the land in question, - but nevertheless he passed a decree in favour of the plaintiff for a part of the compensation money in the following words: The removal of earth must have caused some damage to the lands. As a result, the deterioration, if any, has been caused presently to the tenant and ulteriorily to the owner. So, in cases of occupancy tenants, I am inclined to give them an equal share in the compensation money with that of the owners. I, therefore, hold that the appellants as occupancy raiyats are entitled to recover Rs. 100 (one hundred) only out of the compensation money received by the respondents in connection with the damage caused to these lands. The learned Advocate for the defendant -appellants has contended that the decree for compensation as passed by the learned Subordinate Judge is arbitrary and without any legal foundation.
(3.) MR . Ghose for the appellant has not disputed the finding that the plaintiff is an occupancy tenant with respect to the land in suit and the only question for consideration is whether by virtue of such a status, - -he is entitled to any part of the compensation money paid by the Railway to the proprietor of the land for the removal of the earth. It is conceded that the plaintiff has adduced no evidence to show that he sustained any loss or damage due to the removal of the earth from a portion of the land under his tenancy or even that the land has suffered in quality. He based his claim to a portion of the compensation money solely on his right as an occupancy tenant with respect to the land. The rights, of an occupancy raiyat are stated in Sections 14 and 15 of the Assam Tenancy Act which have been referred to by the learned Munsiff as well as by the learned Subordinate Judge. An occupancy tenant has a right to use the land subject to certain limitations as to enjoyment and transfer of his interest; he can neither remove the earth himself if it materially impairs the value of the land or renders it unfit for the purpose of tenancy, - -nor can he fell trees that are not raised or grown by him. An occupancy tenant is not a full owner. For instance he has no power to sell the holding. In the absence of power to sell the holding, he is not entitled to participate in the sale proceeds of a part of the corpus or the compensation money paid to the landlord by a stranger who removes some earth from the land covered by the tenancy.;

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