Judgement

Appeal (No. 63 of 1930) from a decree of the High Court (April 22, 1929) which reversed a decree of the first Subordinate Judge of Chrttagong (February 14, 1927).

Law Rep. 58 Ind. App. 440 ( 1930- 1931) Turner Morrison and C ompany, Limited V. Monmohan C howdhury 214

The respondent sued to eject the appellants from plots of land forming part of a revenue paying estate. The respondents predecessor in title had bought the estate in 1913 at a sale for arrears of revenue. The appellants predecessors had acquired the right to possession of the plots by purchase in 1904, and held as tenants of a talukdar subordinate to the zamindar. They used the plots for manufacturing purposes. The existence of the taluk was denied by the respondent but was found concurrently. In the record-of-rights prepared in 1898 most of the plots were recorded as being in the possession of raiyats.

The rights of the parties depended upon s. 37 of the Bengal Land Revenue Sales Act, 1859, which is set out in the judgment of the Judicial Committee; the facts are there more fully stated.

The Subordinate Judge dismissed the suit mainly on the ground that the taluk was an under-tenure within s. 37 of the Act of 1859, and the purchaser had given no notice to annul it. He also held that the defendants were raiyats and therefore protected from ejectment by the proviso to s. 37.

An appeal to the High Court was allowed by a judgment delivered by B. B. Ghose J. and concurred in by Panton J. The learned judge was of opinion that the bringing of the suit was a sufficient expression of the purchasers intention to annul the encumbrances, in which term he included the taluk ; he was also of opinion that the purchaser had given the talukdar notice to annul the taluk, if that were necessary. The judgment of the High Court is reported at I. L. R. 57 C. 434.

1931. June 11, 12, 22. De Gruyther K.C, and G. D. McNair for the appellants. By s. 37 of the Bengal Land Revenue Sales Act, 1859, it is only encumbrances which are automatically annulled upon a sale under the Act; as to under-tenures the purchaser has merely the right to annul them subject to exceptions. The third exception to the section shows that the taluk, being created by the proprietor after the settlement, was an under-tenure for the purpose of the section. By the definition in ss. 159, 161 of the Bengal Tenancy Act, 1885, an intermediate tenure is an encumbrance for the purposes of that Act; but the Act of 1859 distinguishes between an encumbrance and an under-tenure. In order to annul the taluk a clear expression of intention was necessary

Surnomoyee v. Sutteeschunder Roy (( 1864) 10 Moo. I. A. 123.); Suttosurrun Ghosal v. Mohesh Chunder Mitter (( 1869) 11 Suth. W. R. (P. C.) 10.) ; Khajah Assanoollah v. Obhoy Chunder Roy (( 1870) 13 Moo. I. A. 317, 326.); Aftabooddeen Mahomed v. Sanioollah (( 1875) 23 Suth. W. R. 245.) ; Trilochun Chuckerbutty v. Komola Kunt Chuckerbutty. (( 1876) 25 Suth. W. R. 536.) The evidence does not support the view that the purchaser had expressed a clear intention to annul the taluk; the respondent did not so allege by his pleadings, his case being that there was no taluk subsisting. The suit itself did not operate as a notice, because the talukdar was not a party. By art. 121 of the Limitation Act it is now too late to annul the taluk. The taluk not having been annulled the appellants rights were not affected, as they held from the talukdar and there was no privity of contract between them and the zamindar. That the respondent could not eject the appellants without annulling the taluk is supported by Titu Bibi v. Mohesh Chunder Bagchi (( 1883) I. L. R. 9

C. 683.) ; Mafizuddin v. Ashutosh (( 1910) 14 C. W. N. 352.), followed in Monmotha Nath Mitter v. Anath Bundhu Pal. (( 1919) 25 C. W. N. 106.) Further, the plots were raiyati land; the appellants were therefore protected from ejectment by the proviso to s. 37. Land remains raiyati land although the raiyat uses it for a non-raiyat