SHIYA JANKI THAKURAIN Vs. KIRTANAND SINGH BAHADUR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the respondents who are the landlords of Mouza Majhgain to recover possession of a non-transferable holding situated in the mouza which was sold by defendant second party to defendant first party in 1921. It is common ground that the defendant second party purchased the holding from the original tenants who are the defendants third party and remained in possession for over 12 years before they transferred it to the defendant first party. It is also not disputed that the holding is not transferable, that the landlord did not give his consent either to the transfer made by defendant third party in favour of defendant second party or to the transfer made by defendant second party in favour of defendant first party and that both defendants first and second party have never paid rent to the landlord. The question is whether in these circumstances the landlords are entitled to claim possession on the ground that the last transfer was made without their consent. In order to answer this question, we shall have to determine whether the defendant second party became the full owner of the land or merely acquired the status of an occupancy tenant by being in possession of the land for over 12 years under a transfer which had not been authorised by the landlord and without paying rent to him. If he became the full owner of the land then he had all the rights that the landlord possessed in the land and the landlord's consent to the transfer made in favour of defendant first party was not necessary. If, on the other hand, he acquired merely the status of an occupancy tenant, the landlord would be entitled to claim his right of reentry.

(2.) The lower appellate Court has come to the conclusion that the defendant second party merely acquired the rights of an occupancy tenant by prescription, and in my opinion, this view is correct, because during the period of his possession he merely asserted that he was a tenant under the plaintiffs and never asserted that he himself was landlord or full owner of the land. This has been found as a fact by the lower appellate Court and it is also clear from the recitals in the sale- deed (Ex. B) executed by defendant second party in favour of defendant first party. In that deed the holding is described as an occupancy jote bearing a rental of Rs. 39 odd within the zemindary of the plaintiffs and it is further recited: It is desired that the said vendee should enter into possession and occupation of the vended lands, and should on paying the rents to the proprietors or zemindars appropriate the sixteen annas of the produce ... and should on removal of my name get her own name recorded in the zemindari Sherista.

(3.) These recitals support the finding of the lower appellate Court and show that the defendant second party never repudiated the title of the landlord as a landlord and that he prescribed merely for the limited right of a tenant. In these circumstances it seems clear that the defendant second party acquired merely the rights of an occupancy tenant and held the lands under the same terms as the other occupancy tenants of the village did. That being so, the decree passed by the lower appellate Court seems to be correct in law. The second point which was argued before us was that the present case would be governed by the Bihar Tenancy Act (VIII of 1934) and the only right which the landlord now possesses is to claim his transfer-fee which is prescribed under Section 26 of the Act. It is said that Section 26(o) has a retrospective effect be cause it applies to sales of occupancy holdings effected between 1 January. 1923 and 1 April 1934. The question, however, to be considered is whether this provision will affect a pending action and take away a right which has vested in a party under a decree passed by a Court of competent jurisdiction before the Act came into force. Section 8, Bihar General Clauses Act, provides that where any Bihar and Orissa Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.