AMIRULLAH MAHOMED Vs. NAZIR MAHOMED

JUDGEMENT

(1.) The facts of this case are shortly these:--One Gumai Nasya held an occupancy holding under Roop Mohun, a permanent tenureholder. Gumai sublet the lands comprised in his holding to the ancestor of the present defendants, but the sublease was not made under a registered instrument, nor was it made with the consent of the landlord. In the year 1887-88 the plaintiff purchased Roop Mohun's interest in the permanent tenure and subsequently acquired the occupancy holding of Gumai by a registered kabala. And he then instituted the present suit for establishment of his right to the disputed lands and for khas possession on the ground that by his purchase of the occupancy holding the right of occupancy had merged into the plaintiff's superior interest: that the defendants were under-raiyats under Gumai, and that, under the provisions of Section 85(1) they were not entitled to remain in possession.

(2.) One of the questions raised between the parties in the Court below was whether the defendants were liable to be ejected without a notice to quit being served upon them under the provisions of Section 49 of the Bengal Tenancy Act. The Lower Appellate Court has held that no such notice was necessary to be given to the defendants, because the sublease to the defendants by Gumai was invalid so far as the landlord is concerned, and the plaintiff being both the landlord and the purchaser of the occupancy holding of Gumai was entitled to eject the defendants. And the only question that we have to determine in this appeal is whether the defendants were entitled to notice before they could be ejected from the lands in suit.

(3.) No doubt under Section 22 of the Bengal Tenancy Act, by reason of the purchase that was made by the plaintiff, the landlord, the occupancy holding has merged into his superior tenure; but it will be observed that it is only by reason of the plaintiff's purchase of such occupancy holding that he has acquired a right to bring a suit against the defendants. It is not a case of acquisition of an occupancy holding at a sale for arrears of rent under the Bengal Tenancy Act, as it was in the case of Peary Mohun Mookerjee V/s. Badul Chandra Bagdi (1900) I.L.R. 28 Calc. 205. The plaintiff did not acquire the occupancy holding free of the incumbrances created and engagements entered into by the occupancy holder, but he acquired such rights as the occupancy holder had at the time. That person had already sublet his holding to the defendants, and there can be no doubt that, if he had not sold his holding to the plaintiff but had still continued to hold the property, he could not have maintained an action for ejectment without a notice to quit being served upon the defendants.