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HIGH COURT OF ORISSA
Jagannadha Das, Panigrahi And Narasimham, JJ.
ABDUL HAMID - Appellant
Versus
BORA TATAYA AND ORS. - Respondent
Second Appeal 105 Of 1948
Decided On : NOVEMBER 03, 1950
The Orissa Tenancy Amendment Act of 1946 (Act X (10) of 1946) and the Orissa Tenancy Second (Amendment) Act, XXXII (32) of 1947, were passed to amend the Orissa Tenancy Act, 1913 (Orissa Act II (2) of 1913). The main objective of these amendments was to confer occupancy rights, including the right of non-eviction, on tenants who ordinarily reside in the homestead portion of their tenancy. The amendments also sought to clarify the law relating to the transferability of homestead tenancies and to protect the rights of sub-tenants. The Court held that the amendments were retrospective in nature and applied to pending suits and proceedings. However, the Court also held that the amendments did not apply to transfers of homestead tenancies that had taken place prior to the commencement of the amendments. The Court further held that a dar-chandnadar (a sub-tenant of a chandnadar) was not a 'tenant' within the meaning of the Orissa Tenancy Act and was therefore not entitled to the benefits of the amendments.
Fact of the Case:
The plaintiff, a chandnadar (a type of homestead tenant), filed a suit for ejectment against the defendant, a transferee from a dar-chandnadar (a sub-tenant of a chandnadar). The suit was filed in 1945, prior to the enactment of the Orissa Tenancy Amendment Act of 1946 and the Orissa Tenancy Second (Amendment) Act, XXXII (32) of 1947. The defendant claimed that he was entitled to the benefits of the amendments and could not be evicted from the homestead.
Finding of the Court:
The Court held that the amendments were retrospective in nature and applied to pending suits and proceedings. However, the Court also held that the amendments did not apply to transfers of homestead tenancies that had taken place prior to the commencement of the amendments. The Court further held that a dar-chandnadar was not a 'tenant' within the meaning of the Orissa Tenancy Act and was therefore not entitled to the benefits of the amendments.
Issues: 1. Whether the Orissa Tenancy Amendment Act of 1946 and the Orissa Tenancy Second (Amendment) Act, XXXII (32) of 1947, were retrospective in nature and applied to pending suits and proceedings? 2. Whether the amendments applied to transfers of homestead tenancies that had taken place prior to the commencement of the amendments? 3. Whether a dar-chandnadar was a 'tenant' within the meaning of the Orissa Tenancy Act and was entitled to the benefits of the amendments?
Ratio Decidendi: 1. The Court held that the amendments were retrospective in nature and applied to pending suits and proceedings based on the following reasoning: a) The amendments were intended to confer occupancy rights on tenants who ordinarily reside in the homestead portion of their tenancy and to protect the rights of sub-tenants. b) The amendments were remedial in nature and were intended to remove uncertainties in the tenure of homestead tenants. c) The amendments specifically stated that they would apply to pending suits and proceedings. 2. The Court held that the amendments did not apply to transfers of homestead tenancies that had taken place prior to the commencement of the amendments based on the following reasoning: a) The amendments did not purport to reopen proceedings that had already been closed. b) The amendments were intended to protect the rights of tenants who were in possession of their homesteads at the time the amendments came into force. c) To apply the amendments to transfers that had taken place prior to their commencement would be to give them retrospective effect and would affect vested rights. 3. The Court held that a dar-chandnadar was not a 'tenant' within the meaning of the Orissa Tenancy Act and was therefore not entitled to the benefits of the amendments based on the following reasoning: a) A dar-chandnadar is a sub-tenant of a chandnadar. b) The definition of 'tenant' in the Orissa Tenancy Act does not include dar-chandnadars. c) The amendments were intended to benefit tenants who had a direct relationship with the landlord, not sub-tenants.
Final Decision: The Court dismissed the defendant's appeal and upheld the decree of the lower appellate Court, which had granted the plaintiff's suit for ejectment. The Court held that the defendant was not entitled to the benefits of the Orissa Tenancy Amendment Act of 1946 and the Orissa Tenancy Second (Amendment) Act, XXXII (32) of 1947, and that he was therefore liable to be evicted from the homestead.
JAGANNADHADAS, J.
( 1 ) DEFENDANT 1 is the applt in this 2nd appeal. The appeal arises out of a suit for ejectment filed by the pltf against defts 1 and 2 in respect of a homestead land,. 015 acre in. extent and appertaining to plot 236 in Cuttack town. Plot 236 out of which the suit-plot has been carved out is a homestead plot in respect of which the pltfs have been recorded in the settlement records as chandnadars. Deft 2 obtained a lease of the suit-plot from the pltfs and has been in possession thereof for a considerable period of time, for over 20 years according to the pltf, but according to deft for over 40 years. Deft 2 had admittedly erected a house on it and has been recorded in the current settlement record-of-rights as a Darhandnadar. On 30-6-45, deft 2 sold the land with the superstructure thereon to deft 1. Pltf accordingly filed the suit for ejectment against both defts 1 and 2 on 5-9-45. It is the pltf's case that deft 2 was a mere tenant-at-will under him and that he had no right to make any transfer without his consent. Such consent for the transfer in favour of deft 2 not having been obtained, he was entitled to evict the defts and. re-enter on the land. Deft 2 was 'ex parte'. Deft 1 alleged that deft 2 was not a mere tenantat-will under the pltf, but that he was a permanent tenant or acquired permanency rights He denied that deft 2's rights were not transferable without the consent of the pltf. The Cts below have concurrently held that the pltf is entitled to a decree for ejectment. Hence the; 2nd appeal by deft 1.
( 2 ) IN the trial Ct, the contesting deft set up that deft 2 was admitted to the tenancy under a document giving him a permanent right of occupancy and also alleged that the ejectment suit was not maintainable as there was no proper notice to quit. The alleged written lease was found against and the notice to quit has been found to be sufficient in law. These questions have not been reagitated before us, but it is necessary to note that the deft has not set up the existence of any custom by which deft 2 had permanency rights in his tenancy or a right to transfer his. interest in the Iand without the consent of the pltf. The lower-appellate Ct in confirming the decree granted by the trial Ct, stated as follows: "a Dar-Chandnadar is a mere tenant-at-will and it is the settled principle of law that a. Dar-Chandnadari right is not either transfer and based its decision on this view of the law. The point raised in this appeal is that this assumption of the learned Judge is erroneous and that in any case the orissa Tenancy Amendment Act of 1946,. e. , Act X (10) of 1946 which came into force when that appeal was pendingtaken with the Orissa Act XXXII (32) of 1947 has made a change of the Law in this respect and that the lower appellate ct has not noticed this change.
( 3 ) IN 'dulai Dei v. Chema Das', S. A. 156/37 (8 Cut. L. Notes 6), his Lordship fazl Ali J. stated as follows: "it is now well-settled that a Chandnadar himself has only a non transferable interest and it follows that a Dar-Chandnadar also cannot transfer his right". This appears to justify fully the assumption made by the learned Judge of the lower appellate Ct in the passage above extracted from his judgment. It is true that there is no discussion of this question in the judgment of Fazl Ali, J. , but this was so presumably because the legal position was considered so well established that it could not admit of a contrary argument. It has no doubt been held in 'johabaj Khan v. Sri Krishna De', AIR (23) 1936 Pat, 29: (15 Pat 187 fb) that the burden lies upon the landlord to prove usage or custom in proof of his right to eject a Chandnadari tenant if he wants to maintain ejectment against him. But so far as transferability of the Chandnadari right or the darchandnadari right is concerned, no case has been brought to my notice which conflicts with the view above stated by his Lordship as being the settled law. On the other hand, cases
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