P L D 1964 Dacca 107 (PLP)

I. H. CHOWDHURY, C. J.‑This Letters Patent appeal arises out of a Second Appeal No. 986 of 1958 which arose out of a suit for recovery of khas possession on the allegations that the tenant who held the disputed land as an under‑raiyat without the right of occupancy transferred the entire holding to the defendant without consent of the landlord, the plaintiff.

2. The suit was contested by defendant No. 1, the transferee. The only plea urged on his behalf appears to be that the rent receiving interest of the plaintiff having been acquired by the Government under the East Bengal State Acquisition and Tenancy Act, prior to the institution of the present suit. The plaintiff is not entitled to get khas possession, and the suit is not maintainable. Both the Courts below over‑ruled the contention of the defendants and decreed the suit.

3. In second appeal the defendant succeeded in getting the contention accepted and setting aside the decree for khas posses sion obtained by the plaintiff. Hence this appeal under Clause 15 of the Letters Patent.

4. Rehan Ali Fakir held the suit lands as an under‑raiyat, without the right of occupancy under the plaintiff as a landlord. Rehan Ali transferred the under‑raiyati holding to the defendants without the consent of the plaintiff in 1358 B.S. corresponding to 1951 A. D. The plaintiff filed the present suit sometime in early 1364 B. S., or towards the close of 1363 B.S. corresponding to 1957. In the meantime East Bengal State Acquisition and Tenancy Act came into force in 1952 but the provisions of that Act were made applicable by notice of acquisition on the 1st Baisakh, 1363 B. S. corresponding to 14‑4‑

56. As a result the plaintiff was completely divested of his interest as a landlord.

5. Both the Courts below, however, proceeded on the basis that since the disputed alienation, which gave rise to the cause of action under section 48‑F of the Bengal Tenancy Act for the landlords right of re‑entry, took place at a time when the interest of the plaintiff as landlord was subsisting and since 'he has come within the prescribed period of limitation. Subsequent divesting of the interest as mentioned above could not affect the exercise of the said right that has already accrued in his favour.

6. In second appeal the learned Single Judge has taken the view that the right of re‑entry accruing from unauthorised aliena tion, relinquishment or abandonments is an inseparable incident of ownership and subsistence of ownership on the part of the landlord is the sine qua non for successful enforcement through legal process of the said right so vesting in him: "To my mind, however, right of re‑entry accruing from unauthorised alienation, relinquishment or abandonment is an inseparable incident of ownership and subsistence of owner ship on the part of the landlord is the sine qua non for successful enforcement through legal process of the said right so vesting in him. In other words, the right may be availed of only by one who is, and not by one who has ceased to be, the land lord." In that view of the matter the learned Single Judge allowed the appeal, set aside the judgments and decrees of the Court is below and dismissed the suit of the plaintiff. But as the learned Judge himself felt that the point was not free from doubt or difficulty and as the view he was taking was naturally one of first impres sion, he granted leave to appeal under Clause 15 of the Letters Patent.

7. It is contended by the learned Advocate appearing on behalf of the appellant in this Letters Patent appeal, as contended before the lower Courts, that East Bengal State Acquisition and Tenancy Act has not affected the vested right of getting khas possession. Mr. Bose, the learned Advocate for the respondent, reiterated his stand taken before the lower Court that the right of getting khas possession was given to the landlord to be exercised by him as a landlord, that is, during the subsistence of the interest of the landlord and not after he ceased to have any interest in the land.

8. It seems to us, that the contention advanced on behalf of the plaintiff appellant in the Letters Patent appeal is of sub stance. Section 48‑F of the Bengal Tenancy Act runs as follows "48‑F. The holding of an under‑raiyat shall descend in the same manner as other immovable property, but subject to the provisions of subsection (2) of section 48‑G, shall not be transferable except with the consent of the landlord." In other words, the transferrer is not binding on the landlord of under‑raiyati holding and he can treat it as abandoned with a right of re‑entry. Soon after the transfer by the under‑raiyat the under‑raiyati, so far as the landlord is concerned, ceased to exist and simultaneously the landlord of the under‑raiyati holding ceased to be the landlord. He becomes a person with a right of getting khas possession of the land from the transferee of the under‑raiyati holding. To him, the transferee is not but a trespasser though the transfer is binding against the rest of the world. This position is similar to that of a person in khas possession of land along with rent‑receiving interest in other land and if he is dispossessed from any portion of his khas land he is A no doubt entitled to recover khas possession of that land irrespective of the fact that the East Bengal State Acquisi tion and Tenancy Act 1951 came into operation on 14‑4‑56, within the meaning of section 20 of the said Act, he can claim that portion of the land within the retainable khas land under that section. Similar is also the case, if he does not want to keep it within his retainable khas land, he is entitled to get compensation of his khas land and the rate of compensation is higher than the rate for tenanted land i.e., for rent‑receiving interest, and for that purpose he is to establish his possession by obtaining a decree for khas possession from the trespasser. We do not find any difference between the trespasser in the shape of an unauthorised transferee from an under‑raiyat and an ordinary trespasser. In the case of Jatindra Nath De v. Jetu Mahato andl others (50 C W N 502) the Full Bench of Calcutta High Court has held :‑ "A right given to the immediate landlord of an occupancy holding by section 26‑F of the Bengal Tenancy Act, 1885, as it stood before the Bengal Tenancy Amendment Act, 1938, came into force to purchase a holding was not a right merely to take advantage of a statute and dependent on the application being made by the landlord under subsection (1) but was a right which accrued to the landlord as soon as a transfer of such holding was made and registered; such right once accrued has not been taken away by the aforesaid Amendment Act of 1938 and is saved under section 8, clause (c) of the Bengal General Clauses Act. When right and procedure are both altered by amending or repealing statute, then if the rights accrued under the previous enactment are saved, the old procedure is also saved unless the new enactment expressly or by necessary implication provides to the contrary or makes the new procedure applicable to old rights."

9. The fallacy of the argument advanced by Mr. Bose, the learned Advocate for the respondent, is that an analogy has been drawn from some of the Calcutta cases including the case of Abdul Majid Bhuiya and others v. Ali Mian (36 C W N 217), cited in the judgment of the learned Single Judge that as to the right of re-entry on abandonment and the right of getting the benefit of rent sale in execution of rent decree the landlord is to retain his character as a landlord throughout the proceeding. On this analogy the learned Advocate sought to apply the principle of retaining the character of landlord throughout the proceeding of the suit for getting khas possession in the present case. The position has been made clear in the decision of a Division Bench of this Court in the case of Tayabulla Sowdagar v. Siddique Ahmed and others (13 D L R 610), to which decision one of us is a party. In that decision it has been pointed out that there is no difference between khas possession and the right to get khas possession for the purpose of the East Bengal State Acquisition and Tenancy Act. The East Bengal State Acquisition and Tenancy Act has not affec ted, expressly or by necessary implication, the right of getting khas possession which accrued to a man either on account of simple trespass or on account of the right accrued to him by the operation e of law. That right exists whether he gets khas possession before or after the act came into force. In that case the point has been elaborately dealt with, and we do not dwell upon this point any more. Unfortunately this decision of the Division Bench was after the decision of the learned Single Judge and as such it could not have been cited before him and the learned Judge, it appears from his own judgment, felt difficulty on this point.

10. The result, therefore, is that in view of the decision of the Division Bench of this Court reported in 13 D L R 610 and also the unreported decision of the Supreme Court in Civil Appeal No. 34 of 1958 Mathura Mohan Cbowdhury v. Sultan Ahmed Sharif, cited in the case we allow this appeal and set aside the judgment and decree of the learned Single Judge in the second appeal and restore those of the Courts below. In the circumstances of the case we make no order as to costs. A. S.CHOWDHURY, J.‑I agree with my Lord the Chief Justice. s. s. Appeal allowed.