P L D 1956 Dacca 41 (PLP)

IBRAHIM, J.‑The plaintiff appellant purchased a noabad taluk from Syed Ahmed, who instituted this suit to eject the defendants after his purchase, at a revenue sale on the 8th of September, 1943. The appellant was substituted in place of Syed Ahmed, after the transfer to him. The defendants claim protection under section 14 and the third exception to section 12 of Act VII (B. C.) of 1868. Section 12 provides: "The purchaser of any tenure sold under the provisions of section 11 of this Act shall acquire it free from all encumbr ances which may have been imposed upon it after its creation, or after the time of settlement whichever may have last occurred, and shall be entitled to avoid and annul all under‑tenures and forthwith to eject all under‑tenants (with certain exceptions)". The third exception to this section is: "Tenures created or recognised by the settlement proceed ings of any current temporary settlement as tenures bearing a rent which is fixed for the period of such settlement". Section 14 of Act VII (B. C.) of 1868 is similar to the proviso to section 37 of Act XI of 1859, and lays down that nothing contained in section 12 shall be construed to entitle the purchaser "to eject any raiyat, having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules under the laws in force etc." The trial Court held that the defendants were not entitled to protection under the third exception to section 12, but decided that they were entitled to protection under section

14. The lower appellate Court held that they were protected by section 14, and if not by that section, by the third exception to section 12 ; and that in any case they could not be evicted. In this view of the matter, both the Courts below declared the plaintiff's title but refused the prayer for khas possession. The only point for determination in this second appeal is whether the appellant is entitled to recover khas possession, The suit lands are C. S. Plots 208 and 213 of Mouja Chandan pura. A tenancy in respect of these two plots was created in favour of the defendants or their predecessors before 1875. Exh. A is the confirmatory patta of that year. The tenancy is described in this document as a chashi karsa (raiyati) lease at a rental of Rs. 3‑4‑

0. In 1898 the defendants were recorded as settled raiyats in the record of rights. The rental was recorded as Rs. 3‑

4. In 1901 there was a settlement or a fresh settle ment of the noabad taluk for a period of thirty years. In 1908 the then talukdars brought a suit against the defendants for rent at an enhanced rate. The claim at enhanced rate failed. On the 7th of April, 1931, there was a new settlement of the noabad taluk. In the revisional settlement in 1932 the defend ants were recorded as dakhalkars i.e., persons in possession. In 1935 Yar Ali, a purchaser at a revenue sale, instituted a similar suit to eject the defendants ; but he was unsuccessful. Syed Ahmed purchased it at the next revenue sale and then instituted this suit. The lower appellate Court has found that at present there is a homestead in one plot and a shop in the other, Mr. Nagendra Chandra Choudhury, therefore, argues that as the defendants do not cultivate the lands now, they cannot be regarded as raiyats within the meaning of that word in section 14, and are not entitled to the protection of that section. He relies on Turner Morrison & Co., Ltd. v. Mon Mohan Choudhury alias Panchkari Choudhury (36 C W N 29 (P C)). That was a suit by an auction purchaser of an estate at a revenue sale for eviction of Turner Morrison & Co. Ltd., from lands some of which had previously been held by raiyats. With reference to the decision of the learned Subordinate judge that the Company was entitled to protection under the proviso to section 37 of Act XI of 1859 in respect of these lands, Sir George Lowndes, who delivered the judgment of the Privy Council, observed. "The question of the proviso can also be disposed of without difficulty. The Subordinate Judge was satisfied that four of the plots, the subject of the suit, were raiyati holdings at the time of the settlement. He did not think that the appellants were themselves raiyats, but he held that 'raiyat' in the proviso also included the successors‑in‑interest of raiyats, construing the term by the definition contained in section 5 (2) of the Bengal Tenancy Act of 1885. The High Court, on appeal, thought that there was no justifica tion for this, and that there being no definition of raiyat in the Act of 1859, it must be read in its ordinary sense of a cultivator. Their Lordships have no doubt that the view taken by the High Court was right, and that the proviso has no application to the appellants". In Prodyot Kumar Sen Gunta v. Nagendra Kumar Chou dhury (52 C W N 72) defendant No. 11 (ka), whose case rested on facts closely resembling those of the present case, claimed protec tion under section

14. Rejecting this claim Chakravartti, J., said: "The interest is clearly not protected under section 14 of Act VII of 1868, for having regard to the decision of the Privy Council in Turner Morrison & Co. Ltd. v. Mon Mohan Choudhury the word 'raiyat', occurring in the section, must mean a cultivating raiyat which defendant No. 11 (ka) is not. Nor was defendant No. 1 a cultivating raiyat at the time of the revenue sale, when he was the tenant". [Defend ant No. 11 (ka) was a transferee from defendant No. 1] Mr. Choudhury's contention before me is exactly the same. What he means is that if a raiyat, though otherwise entitled to the protection under section 14, ceases to cultivate the land, he cannot claim protection. In my opinion, the decision of the Privy Council in Turner Morrison's case does not go so far as that. Turner Morrison & Co. Ltd., were not cultivators. They no doubt purchased the lands from the raiyats; but instead of cultivating them they did works of manufacture there. They were neither originally cultivators nor they became so after their purchase. That decision does not, to my mind, apply to the case of a cultivator who has several holdings and erects a house and a shop in one of them. The protection is intended for cultivators having a right of occu pancy at a fixed rent, etc. All that is necessary is that the person seeking protection should be a cultivator and should have a right of occupancy in the land at a fixed rent, etc. it is not necessary that he should cultivate it. A cultivator who has several holdings does not cease to be so, if he erects his house in one of them and makes a shop there to supplement his poor income. Such a person cannot be denied the protection of section 14 on the ground that he has ceased to cultivate the land. The result otherwise may ultimately be that he will be driven out of all his holdings as he shifts his house from one to another. The plain language of section 14 does not compel any such interpretation. Section 21, Bengal Tenancy Act, gives every‑settled raiyat of a village right of occupancy in all lands held by him in that village as a raiyat. To hold land as a raiyat it is not necessary that it should be cultivated. The land may be a homestead. Even when a raiyat holds his homestead otherwise than as a part of his holding, in the same or a contiguous village, his status in respect of it is that of a raiyat and the incidents of the tenancy are governed by the provisions applicable to raiyats (section 182 of the Bengal Tenancy Act). The defendants took the suit land on a chashi karsha lease (raiyati lease) before 1875 (vide patta). In 1898 they were recorded as settled raiyats. Clearly, they are raiyats and have right of occupancy in the suit land and are protected by section

14. It is, however, clear that the defendants are protected by the third exception to section 12, if not under section

14. It seems to me to be implied by the language of section 14 that any raiyat having a right of occupancy at a fixed rent comes within the meaning of the word "under‑tenure" in section 12; otherwise there would be no necessity of enacting section 14 to protect such an interest. It provides that "nothing herein before contained shall be construed to entitle any such purchaser under section 11 of this Act to eject any raiyat having a right of occupancy at a fixed rent, etc". It means that a raiyat having a right of occupancy at a fixed rent, may be hit by section 12 and to avoid any such consequence, section 14 provides for his protection. If, therefore, a raiyat having a right of occupancy loses the protection of section 14 by reason of having ceased to cultivate the land, he is entitled to protection under the third exception to section 12, if he can make out that his interest was created or recognised by the settlement proceedings of any current temporary settle ment. In the settlement khatian of 1932, i.e., the current settlement, the defendants were recorded as dakhalkars, i.e. persons in possession. The jama was recorded as Rs. 3‑4‑0 with a note that the land was not assessed to fresh rent. In Prodyot Kumar's case the case of defendant No. 11 (ka) rested on facts which are thus stated: "The facts found are that in the settlement records of 1898, one Amirjan Bibi was recorded as the tenant in respect of these lands under the ijara held by the Hazaris, paying a rent of annas 10 per annum. The interest recorded was that of a settled raiyat. On the 23rd January, 1901., Amirjan sold the raiyati to one Upendra, a brother of defendant No. 1, from whom the latter inherited it. In the settlement records of 1932, defendant No. 1 is recorded as a dakhalkar under the Hazaris with whom the ijara was then re‑settled and the rent payable is recorded as the same 10 annas. In the remarks column occurs the entry : 'No new jama is being fixed for this interest'." The land involved in that case was a tank and its bank not in actual cultivation. It was held that the above‑mentioned entry indicated that the tenure was recognised. Chakravarti, J. observed: "It is true, as was contended by Mr. Gupta and as was held in the case of Lakhshidhar Barua v. Saroda Charan Dey (20CLJ40) recognition does not merely imply the record of a fact found to exist, but involves the notion of either acquiescence in or sanction of a fact found to exist. But here the record mentions the existing rent and adds that no new rent is being fixed. In our opinion, the second entry clearly implies that the existing rent was being accepted and left as it was and thus recognised as the rent payable by the tenant during the period of settlement." I do not see any reason why the same reasoning should not apply here. Mr. Choudhury has laid stress on the fact that the defendants are recorded as dakhalkars. He means to say that that should be taken as an indication, that the tenancy was not recognised by the current settlement proceedings. That fact cannot be taken by itself : the entry must be read as a whole. In Prodyot Kumar's case, with reference to the word "dakhal kar", Chakravarti J. said: "The word 'dakhalkar' does not necessarily exclude a tenancy and the word may be used to describe a tenant of a non‑agricultural tenancy who cannot be brought under any of the specific categories mentioned in section 4 of the Bengal Tenancy Act, but who is a tenant nevertheless." And he repelled the contention similar to that raised here by Mr. Choudhury by observing further: "In view of the finding of the Courts below that the tenancy has become a non‑agricultural, one we are of opinion that it cannot be said that the record does not recognise the tenancy, merely because the word 'dakhalkar' has been used". In that case it was held that the protection under the third exception to section 12 was available to defendant No. 11 (ka). This appeal fails and is dismissed with costs. Leave to appeal under clause 15 of the Letters Patent is asked for but refused. K. M. A./A. H. Appeal dismissed.