P L D 1965 Dacca 400 (PLP)

M. H. Khondkar for Petitioner. Nemo for the Opposite‑Parties. The plaintiff‑petitioner as 8 annas co‑sharer landlord, in the S. C. C. suit sought for realisation of a certain sum of money, as fair and equitable, for the use and occupation of a holding alleged to have been acquired by his co‑sharer landlords. The learned S. C. C. Judge decreed for costs of the suit but dismissed his claim for compensation for use and occupation on the finding that the rent had been paid by his co‑sharer‑landlords to the Government. Mr. Khondkar, the learned Advocate for the petitioner, has contended that in view of the provision in the proviso to subsection (2) of section 22 of the Bengal Tenancy Act his client is entitled to get compensation for the use and occupation of the holding of a raiyat which came in possession of his co‑sharers, the opposite‑parties, on purchase and that the payment by his co‑sharers to the Government cannot be said to be satisfaction of the claim of the petitioner. The aforesaid position can better be appreciated if some reference be made to the East Bengal State Acquisition and Tenancy Act of 1950. In view of the provision in the State Acquisition and Tenancy Act, all rent receiving interests vested in the Government at least by 1956 and as such there is no landlord in existence as contemplated in the Bengal Tenancy Act. Though Mr. Khondkar admits of the change brought by the State Acquisition and Tenancy Act but he has contended that his right to realise compensation as provided under section 22 of the Bengal Tenancy Act has not been any way affected. To my mind the said contention of Mr. Khondkar cannot be given effect to. Section 22 of the Bengal Tenancy Act provided for effect of acquisition of occupancy right by landlord. By subsection (1) it was provided that when the tenancy right was acquired by the proprietor or the proprietors there would be merger of the subordinate interest in the superior interest. Subsection (2) provided that nothing in that section could prevent the acquisition by transfer, succession or in any other way whatsoever, of the holding of an occupancy‑raiyat or share or portion thereof, together with the occupancy‑rights therein by a person who was, or become, jointly interested in the lands as a proprietor or a permanent tenure‑holder. The proviso to subsection (2) pro vided that a co‑sharer landlord who purchased a holding of a raiyat at a sale in execution of a rent decree or of a certificate under that Act should not hold the land comprised in such holding as a raiyat but should hold the land as a proprietor or tenure‑holder, as the case may be, and should pay to his co‑sharers a fair and equitable sum for the use and occupation of the same. That proviso, in my opinion, authorised a co‑sharer‑landlord to acquire the occupancy right and to retain the same without the humiliation of being called a tenant under his co‑sharer and at the same made him liable to pay to his co‑sharer in the shape of compensation for use and occupation. Now, after the State Acquisition Act, can it be held that though a co‑sharer landlord no more a co‑sharer‑landlord will be entitled to realise a certain sum of money for use and occupation of the tenancy obtained by his co‑sharers before the State Acquisition Act came into being. In my opinion, the co‑sharer is not entitled to get' compensation for use and occupation, his character as landlord having been lost and changed into a character of one of a tenant directly under the Government in respect of the khas lands only. The State Acquisition and Tenancy Act has abolished totally the rent receiving interest, whether in the shape of rent or in the nature of compensation. The compensation allowed under the proviso to subsection (2) of section 22 of the Tenancy Act, though could not be called rent payable under the Bengal Tenancy Act by a tenant to the landlord, it was in the nature of a rent received by a rent‑receiver. Hence in my opinion after the State Acquisition Act no co‑sharer‑landlord who was entitled to get compensation as provided under the said proviso, is entitled, to get the compensation for use and occupation. The co‑sharers no longer possess the tenancy as co‑sharer landlords but possess it as tenants under the Government directly. I accordingly find no substance in this case and discharge the Rule without any order as to costs, as there is no appearance on behalf of the opposite‑parties. S. Q. Rule discharged.