Amar Ali vs Farat Ali and Another

Scroope, J.—The question that arises for decision in these second appeals is admitted by both sides to be this: can a stranger, who purchases a raiyati-holding, sold for arrears of rent, eject an under-raiyat by the procedure laid down in Section 49, Ben. Ten. Act, that is by a notice to quit, though he has failed to annul the encumbrance? The first Court decided the question in the affirmative, relying on the case of Bhuban Mohan Guha v. Sheikh Badan [1919] 46 Cal. 766, but the Subordinate Judge did not adopt the interpretation placed on that ruling by the first Court and took the contrary view. He relied also on Janaki Nath Hore v. Prabhasini Dasi [1915] 43 Cal. 178.

I feel no doubt that the answer must be in the affirmative. The ''raison detre'' of Section 167, Ben. Ten. Act, is that the landlord''s security for his rent shall not be diminished by alienations of the holding to which he has not assented and the section gives a prompt means to a purchaser to avoid such alienations after due notice. Supposing the purchaser as here did not take the trouble to avoid them and chose to stop exactly into the shoes of the old tenant; there is no reason why in such a case he should be worse off than the latter and should not be entitled to eject the under-raiyat by the regular method as laid down in Section 49. It, does not follow that because a purchaser fails to take advantage of the special facilities afforded by Section 167 he should be deprived of the ordinary rights of his predecessor-in-interest, namely to eject an under-raiyat by a notice to quit, and one might as well contend that a purchaser in such a case who fails to annul a mortgage encumbrance could never afterwards redeem the mortgage; this would be absurd. As to the ruling relied on by the learned Subordinate Judge and Mr. Noorul Hasan for the respondent, Janaki Nath Hore v. Prabhasini Dasi [1915] 43 Cal. 178, in that case there had been no notice to quit, served on the under-raiyat. In that case the person sought to eject the under-raiyat, having neither annulled the encumbrance nor served him with notice to quit. Here there has been admittedly a, notice to quit u/s 49.

On this view of the law the appeals must succeed and plaintiff''s suit must be decreed and the decision of the learned Munsif must be restored. The plaintiff is entitled to his costs throughout.