Having lost in both the Courts below defendant has filed the present second appeal.

2. The case of the plaintiff is that he purchased occupancy right i.e. jote right in respect of 3 Bighas 16 Kathas of land from one Shiv Kumar @ Ram Kumar by a registered deed dated 6.2.73 and got possession. Subsequently principal defendant No.l dispossessed him from 1 Bigha of land described in Schedule III to the plaint. In the first Schedule, the entire land has been described and in the second Schedule, the land in possession of the plaintiff has been described. According to defendant he purchased the entire first Schedule land from proforma defendant No.2 by a registered sale deed on 96.72. i.e. prior to the date of purchase by the plaintiff and since then he has been in possession of the land. The allegation of dispossession has been denied by the defendant.

3. The learned trial Court framed as many as 7 issues and decreed the suit which was affirmed by the learned lower appellate Court.

4. I have heard Mr. B.K.Das, learned counsel for the appellant and Mr.K.K.Dey, learned counsel for the respondent.

5. Before this- Court Mr. )as has urged 3 points viz (i) the purchase by the plaintiff of the land is void ab-initio as it was violative of section 8 of the Assam (Temporarily Settled Areas) Tenancy Act, 19 1, for short the Act, inasmuch as, prior permission of the Government was not obtained and n o notice of transfer was served on the landlord ; (ii) the decree is bad in law, inasmuch as, the landlord who was a necessity party was not impleaded and (iii) the sale deed in favour of the defendant Ext. 1, was prior to the purchase of the land by the plaintiff by the deed Ext. l. Mr. Das has further urged that suit is also hit by section 31 of the Specific Relief Act, 1963 as there is no prayer for cancellation of the sale deed, Ext. A.

6. On the other hand, Mr. Dey, learned counsel for the respond­ent has urged that this is for the first time, that legal plea No. l, as stated above, has been taken before this Court. Regarding impleading the landlord as a party, the learned counsel has urged that he is not a necessary party, as no relief has been claimed against him and that apart, the revenue record viz Khatian, Ext.3 clearly proves that the plaintiff is a tenant in respect of the suit land. Learned counsel has further urged that as both the Courts below did not accept the sale deed, Ext. A, after considering the evidence on record and also taking into consideration the expert's evidence, the submission of Mr. Das that suit is hit by section 31 of the Specific Relief Act is not tenable.

7. As the consequence of non-compliance of section 8 of the Act has been laid down in section 50 of the Act, both the sections have to be read together. I quote below the said sections 8 and 50:

"8. Right of transfer. -An occupancy tenant shall have a right of transfer in respect of his holding with the prior permission of the Government in the manner prsecribed. A notice of such transfer shall be served on the landlord in the manner prescribed.

Provided that an occupancy tenant shall not transfer his land to a non-agriculturist."

"50. Forfeiture of tenancy on subletting and transfer.- If a tenant sublets or transfer the whole or any part of his holding otherwise than in accordance with the provision of this Act, then the tenant's interest thereon shall be forfeited; and

(a) if the transferee is an agriculturist, he shall be deemed to have become a tenant under the landlord under the same terms and conditions as the transferor;

(b) if the transferee is a non-agriculturist then such transfer shall be void and the Deputy Commissioner may, after such enquiry as may be prescribed, and after ejecting any person in possession, place any landless agriculturist as a non-occupancy tenant of the landlord."

Reading section 50 alongwith section 8, the intention of the legisl­ature is clear. If a tenant sub-lets or transfer the whole or any part of his holding otherwise then in accord

Click Here to Read the rest of this document