KINU GAZI Vs. KIRANBALA DEBI

JUDGEMENT

(1.) These appeals have arisen out of suits under Section 46, Ben. Ten. Act, for determination of fair and equitable rent and for ejectment if the defendants do not agree to pay the rent so determined. In the trial Court the suits were dismissed as it was held that the defendants being occupancy raiyats, Section 46, Ben. Ten. Act, could not be applied. In the Court of appeal below the appeals have been decreed and it was held that the defendants were non- occupancy raiyats and the suits were remanded for a fresh trial on the footing that the defendants were non-occupancy raiyats. The lands in dispute appertain to Sundarban lots which were gradually re-claimed; it has been found that the area in which the lands lie was declared a "village" on 14 February 1912. The defendants accordingly became occupancy raiyats since they occupied lands in a village continuously for 12 years from that date. The suits were instituted in January a February, 1924. By Act 1 of 1925 there was an amendment of Section 20, Ben. Ten. Act, by insertion of Sub-section (1-a) which runs as follows: A person shall be deemed for the purpose of this section to have continuously held land in a village notwithstanding that such village was defined, surveyed or recorded as or declared to constitute, a village at a date subsequent to the commencement of the said period of 12 years.

(2.) The trial Court held that this amendment had a retrospective effect and that therefore as regards two of the suits the raiyats had acquired occupancy rights before the institution of suits. As regards the other suits the Court found that occupancy rights were acquired during the pendency of the suits and therefore the Munsif held that in all these cases the raiyats could not be ejected. The appellate Court decreed the suits on the ground that (1) the position must be taken as at the time of the institution of the suits and what occurred subsequently cannot affect the position of parties with regard to each other, and (2) Act 1 of 1925 could have no retrospective effect. In this I think he was right. There is nothing in the Act to indicate that it is to have such effect as regards the rights of the parties and unless there is anything to show that its provisions are retrospective, they cannot be taken to have such effect.

(3.) Then as regards acquisition of occupancy rights subsequent to the institution of the suits, the learned Munsif has referred to various cases which are apparently exceptions to the rule that a decision is to be based on the cause of action as it existed at the time of the suit, and no doubt in the cases he referred to, for special reasons, subsequent events have been allowed to affect the decision of the Court. He finds that the original relief asked for by plaintiffs has by reason of acquisition of occupancy right by the defendants become impossible for the Court to grant. The cases have been referred to at a considerable length and it is not necessary to refer to them again, and it is sufficient to say that in all these cases there are special reasons for holding that subsequent events should be allowed to influence the decision of the Court. But in the present case there is no reason to suppose that, as the learned Munsif thinks, in order to do complete justice between the parties and to shorten litigation, the decision of the Court must be based on the altered circumstances. Acquisition of occupancy right by tenant after 12 years is very similar to the acquisition of right by adverse possession by holding the land for a certain period adversely; and in that case a decree can be passed against a defendant though his period of adverse possession is completed during the suit. This is exactly a similar case. Here the period of 12 years required for acquisition of occupancy rights was not complete before the institution of the suits but became so during the pendency of the suits. It would be unreasonable that the suits should be barred as against the defendants simply because subsequent to the institution of the suits they have acquired occupancy rights, perhaps owing to delay in disposal of the suits. The appellate Court is quite right in these circumstances in setting aside the order of the trial Court. A reference has been made on behalf of the appellant to Clause 7, Section 46, Ben. Ten. Act, under which the tenant is not liable to ejectment, if he has acquired a right of occupancy before the expiry of the period of 5 years for which a fair and equitable rent has been fixed. This does not help the appellant but may indicate that if the acquisition of a right of occupancy before a fair and equitable rent was fixed nullified the proceedings, this would have been noted in the section. The result is that these appeals are dismissed with costs.