Jatindra Nath Sinha Roy and Another vs Binode Behari Gupta

Beachcroft, J.—The learned Subordinate Judge has returned the finding after remand that the transferee has acquired the title of a tenant against the landlord by adverse possession of the limited interest. That con-oludes the case. But the learned Pleader for the appellant argues that in spile of the possession of the transferee the defendant is also liable for the rent. That appears to me to be an impossible proposition. The transferee having acquired his title against the landlord, I cannot fee how the transferee and the transferor should be jointly liable for the rent, nor do I see, considering how the transferee has acquired his interest against the landlord, how there can be a several liability. The learned Pleader for the appellant refers to Section 73 of the Bengal Tenancy Act. That obviously has no application, because it refers to the case of a transferable occupancy holding whereas the holding in the present case is non transferable. Nor do I think that we can extend the principle recognized in Section 73 by analogy to the case of a non-transferable holding. Analogies are always dangerous and particularly so in this cage. Section 73 is a very natural provision for the protection of the landlord because otherwise a ryot, having a right of transfer, would not be liable for the rent, even if the transfer were not notified to the landlord. It seems to me that the position of the transferee having acquired a limited interest against the landlord is quite inconsistent with the position of the defendant remaining on the land. Therefore, the defendant is not liable for the rent and the appeal ought to be dismissed with costs of all the hearings in all Courts.

Walmsley, J.

I agree.