DWARIK MANDAL Vs. NALINI KANTA MITRA

JUDGEMENT

(1.) This is an appeal from the decision of the District Judge of Jessore dated 4 May 1935, reversing the decision of the Third Court of the Munsif at Narail dated 11 January 1935. The suit out of which this appeal arises was a suit for ejectment. The facts which are not now in dispute are these : Defendant 2 was inducted into the disputed land as a tenant in 1916 by defendant 1, who held this land along with other lands as an under-raiyat under the plaintiff. Defendant 2 thereafter acquired occupancy right to the land by Iocal custom. The plaintiff purchased the under-raiyati of defendant 1 in the year 1925 at a sale held in execution of a decree against defendant 1 for arrears of rent due in respect thereof. By this purchase however he acquired simply the right, title and interest of defendant 1 as the sale was not under the provisions of Ch. 14, Ben. Ten. Act. Thereafter the plaintiff obtained possession through Court but was dispossessed by defendant 2.

(2.) On these facts, the trial Court dismissed the plaintiff's claim for ejectment. On appeal its decision has been reversed and a decree for ejectment has been passed in favour of the plaintiff. Hence this second appeal by defendant 2. The only point for determination in this appeal is whether defendant 2 is liable to be ejected from the disputed land. It is contended on behalf of the plaintiff that defendant 2 is a trespasser on the land and consequently the plaintiff is entitled to recover possession. The contention of the learned advocate is that defendant 2 has no right to the disputed land, inasmuch as defendant 1 had no right to sub-let the land to defendant 2. It is also contended that even if defendant 1 has any such right, the sub-lease in favour of defendant 2 created by defendant 1 was not binding on the plaintiff, inasmuch as the plaintiff never gave his consent to this sub-lease. Certain oases were cited before us to establish the proposition that an under-raiyat has no right to transfer his holding. In all the oases cited before us excepting the case in Gopal Mollah V/s. Mafidannessa Bibi (1920) 7 AIR Cal 842, the transfers were transfers other than leases. In Gopal Mollah V/s. Mafidannessa Bibi (1920) 7 AIR Cal 842 the learned Judge, relying on the decisions in which the transfers were transfers other than sub-leases held that an under raiyat had no right to sub-let his under-raiyati holding. The learned advocate for the appellant however relied upon the decision of this Court in Paruchulla Sheikh V/s. Sital Chandra Dae (1916) 3 AIR Cal 546, where the learned Judges took the view that an under-raiyat had right to sub-let his under-raiyati. The observations of the learned Judges in Jnanendra Nath V/s. Dukhiram Santra , support the view also that the right of an under-raiyali is not transferable. But this again is based on the oases in which the transfer was other than transfer by leases.

(3.) An under-raiyat is a tenant under Section 4, Ben. Ten. Act. He may be a tenant directly under a raiyat. He may be a tenant under an under, raiyat as well. Whether he is a tenant holding immediately or immediately under a raiyat, he is not a trespasser but a tenant having the status of an under- raiyat. Section 4 (3) gives an indication that under raiyats have power to sublet their under-raiyats and the sublessees are tenants. Defendant 2 therefore became an under-raiyat under defendant 1 in 1916. He acquired also occupancy right in the disputed land by Iocal custom (See the Record of Bights published in the year 1922 and the finding of the trial Court which has not been reversed in appeal by the lower Appellate Court). The position then is that when the plaintiff purchased the right, title and interest of defendant 1 in the year 1925, defendant 2 was on the land as an under-raiyat with a right of occupancy by custom. The contention of the learned advocate for the plaintiff however is that defendant 2 may have been an under-raiyat so far as defendant 1 is concerned, but vis-a-vis plaintiff he is a trespasser, as there was no relationship of landlord and tenant between the plaintiff and defendant 2, there being no privity of contract between them at any time. The relationship of landlord and tenant however under the Bengal Tenancy Act is not always governed by a contract. It is also to be governed by status : see the case in Barhamdat Missir V/s. Kriahnna Sihay (1914) 1 AIR Cal 29 at p. 469. The English rule that the relationship of landlord and tenant can be established by mutual agreement does not apply to the agricultural lands in this country. If a raiyat is inducted into the land by a trespasser, he is entitled to resist eviction by the real owner provided there had been bona fides both on the person inducted and the person inducting : see Binadlal Pakrashi V/s. Kaul Pramanik (1893) 20 Cal 708 (FB). If a settled raiyat of a village takes some land for the purpose of cultivation for a term of years with the express stipulation that he would have no right to hold it after the expiration of the term, he does not become a trespasser after the expiration of the term. He acquires occupancy right in the land by virtue of his status as a settled raiyat of the village and becomes a tenant on the land. If the landlord of She plaintiff had purchased the plaintiff's interest in execution of a decree for arrears of rent under Chap. 14, Ben. Ten. Act, he could not have ejected defendant 2 from the disputed land though there was no privity of contract between him and defendant 2 and though he never gave his consent to the sub-lease in favour of defendant 2: see Secs. 159 and 160 (d), Ben. Ten. Act and the case in Sonatan Dafadar V/s. Daulat Gazl . It has been decided by this Court that an under raiyat coming under a lease from a Hindu widow and acquiring occupancy right by custom is protected from eviction by the reversioners, although the latter are not bound by the lease granted by the widow : See the case in Arjun Chandra v. Trailakya Mani Dasi . For the aforesaid reasons, I am of opinion that the plaintiff who has purchased the Tight, title and interest of defendant 1 in 1925 has no right to eject defendant 2 who has acquired the status of an under-raiyat with a right of occupancy. It is not disputed in this case that before the Amending Bengal Tenancy Act of 1928 came into operation, the tenancy of defendant 2 was not determined according to the provisions of Section 49, Ben. Ten. Act, The rights of the parties being admittedly governed by the law as it stood before the Amending Act came into operation, defendant 2 is entitled to remain on the land.