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. 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-raiyati purpose Prosunno Coomar Chatterjee v. Jagun Nath Bysack. (( 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-raiyati purpose Prosunno Coomar Chatterjee v. Jagun Nath Bysack. (( 1881) 10 C. L. R. 25.) The definition of a " raiyat " in s. 5, sub-s. 2, of the Bengal Tenancy Act, 1885, was declaratory of the law as it was before the Act. Dunne K.C. and Wallach for the respondent. Having regard to the terms of the third exception to s. 37 Law Rep. 58 Ind. App. 440 ( 1930- 1931) Turner Morrison and C ompany, Limited V. Monmohan C howdhury 215 it must be conceded that the taluk was an under-tenure within the meaning of the section, and that the purchaser had merely an option to annul it. The High Court, however, rightly held upon the evidence that the purchaser had expressed an intention to annul it, if, contrary to his contention, it subsisted. It is not necessary that there should be a formal notice Sahadora Mudiali v. Nabin Chand Boral. (( 1914) I. L. R, 42 C. 638.) [Reference was also made to cases already mentioned.] But even if the taluk was not annulled the purchaser was entitled to eject the appellants. Their holding was an encumbrance imposed upon the estate since the settlement, and under s. 37 the purchaser acquired free from such encumbrances. There is no case confining encumbrance to a mortgage or C charge. The cases relied on by the appellants for the view that if the taluk was not annulled the appellants rights were not affected were not decided under s. 37 of the Act of 1859 and are not applicable thereto. The High Court rightly held that the word " raiyats " in the proviso to s. 37 should be given its ordinary meaning of " cultivators," and that the proviso therefore did not apply. De Gruyther K.C. replied. July 28. The judgment of their Lordships was delivered by SIR GEORGE LOWNDES. The question in dispute in this appeal is as to the right of the respondent to eject the appellants from certain plots of land in Mauza Gosaildanga, a village on the outskirts of Chittagong. The plots are shown by their survey numbers on a plan which was proved in the case. The question in dispute in this appeal is as to the right of the respondent to eject the appellants from certain plots of land in Mauza Gosaildanga, a village on the outskirts of Chittagong. The plots are shown by their survey numbers on a plan which was proved in the case. They form part of a revenue paying estate known as Taraf Asad Mosad Khan. The taraf was sold on May 19, 1913, for arrears of revenue, and was purchased by the executor of one Aparna Charan Chowdhury, the father of the respondent, in whom the title to the estate now is. An issue was raised at the trial of the suit as to the bona fides of the sale, but both Courts in India have found this issue in the respondents favour, and their Lordships see no reason to question the correctness of their finding on this point. The plots were purchased in 1904 by the firm of Turner Morrison & Co., who transferred them in 1914 to the limited company of the same name, who are the appellants before the Board. They were used for manufacturing purposes, and were, in part, occupied by offices and godowns. On one plot there was a tank. Some of the plots had previously been held by raiyats, and were so recorded in the record-of-rights, which was prepared in 1898. The appellants and before them, the firm, were the tenants, not of the respondent, but of a subordinate talukdar, to whom they paid a small rent, all the plots being included in the taluk, which was known as Taluk Ram Mohan. The existence of this taluk as a subordinate tenure of the taraf was disputed by the respondent, but it appeared in the record-of-rights, and both Courts in India have affirmed its existence, and the fact that the appellants hold under it. The suit was instituted by the respondent on April 16, 1923, nearly ten years after the sale of the estate. He based his claim to eject the appellants, who were the only defendants to the suit, upon the provisions of s. 37 of the Bengal Land Revenue Sales Act, XL of 1859. The suit was instituted by the respondent on April 16, 1923, nearly ten years after the sale of the estate. He based his claim to eject the appellants, who were the only defendants to the suit, upon the provisions of s. 37 of the Bengal Land Revenue Sales Act, XL of 1859. The section is in the following terms — " Rights of a purchaser of a permanently-settled Estate sold for its own Arrears.—The purchase of n entire estate in the permanently-settled districts of Bengal, Bihar and Orissa, sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of settlement; and shall be entitled to avoid and annul all under-tenures, and forthwith to eject all under-tenants with the following exceptions — Law Rep. 58 Ind. App. 440 ( 1930- 1931) Turner Morrison and C ompany, Limited V. Monmohan C howdhury 216 " Firstly.—Istimrari and mukarrari tenures which have been held at a fixed rent from the time of the Permanent Settlement. " Secondly.—Tenures existing at the time of settlement, which have not been held at a fixed rent; Provided always that the rents for such tenures shall be liable to enhancement under any law for the time being in force for the enhancement of the rent of such tenures. " Thirdly.—Talukdari and other similar tenures created since the time of settlement and held immediately of the proprietors of estates, and farms for terms of years so held when such tenures and farms have been duly registered under the provisions of this Act. " Fourthly.—Leases of lands whereon dwelling-houses, manufactories or other permanent buildings have been erected, or whereon gardens, plantations, wells, tanks, canals, places of worship, or burning or burying grounds have been made, or wherein mines have been sunk. " Fourthly.—Leases of lands whereon dwelling-houses, manufactories or other permanent buildings have been erected, or whereon gardens, plantations, wells, tanks, canals, places of worship, or burning or burying grounds have been made, or wherein mines have been sunk. " And such a purchaser, as is aforesaid, shall be entitled to proceed in the manner prescribed by any law for the time being in force for the enhancement of the rent for any land coming within the fourth class of exceptions above made, if he can prove the same to have been held at what was originally an unfair rent, and if the same shall not have been held at a fixed rent, equal to the rent of good arable land, for a term exceeding twelve years ; but not otherwise. " Proviso.—Provided always that nothing in this section contained shall be construed to entitle any such purchaser as aforesaid to eject any raiyat having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules under the laws in force, or to enhance the rent of any such raiyat otherwise than in the manner prescribed by such laws, or otherwise than the former proprietor, irrespectively of all engagements made since the time of settlement, may have been entitled to." The respondent relied in his plaint on the provision that the purchaser should acquire the estate free from encumbrances. His case was that the tenancies of the appellants were encumbrances which were determined by the sale. This was denied by the appellants, who contended that the taluk under which they held had not been avoided or annulled by the respondent, and that so long as it stood they could not be ejected by him. They further alleged that there were permanent buildings on the land which brought them within the fourth exception, and they also claimed the protection of the proviso, on the ground that the land was entered as raiyati in the record-of-rights. The question of permanent buildings has not been pressed before the Board. The Subordinate Judge of Chittagong, by whom the suit was tried, held that the only permanent building was the tank, and that the suit failed on this ground only with regard to the plot upon which the tank was built. The question of permanent buildings has not been pressed before the Board. The Subordinate Judge of Chittagong, by whom the suit was tried, held that the only permanent building was the tank, and that the suit failed on this ground only with regard to the plot upon which the tank was built. His finding both as to this plot and as to the non-existence of permanent buildings upon the other plots, was affirmed on appeal. The question of the proviso can also be disposed of without difficulty. The Subordinate Judge was satisfied that four of the plots, the subject of the suit, were raiyati holdings at the time of the settlement. He did not think that the appellants were themselves raiyats, but he held that " raiyat " in the proviso also included the successors in interest of raiyats, construing the term by the definition contained in s. 5, sub-s. 2, of the Bengal Tenancy Act, 1885. The High Court, on appeal, thought that there was no justification for this, and that there being no definition of raiyat in the Act of 1859 it must be read in its ordinary sense of a cultivator. Their Lordships have no doubt that the view taken by the High Court was right, and that the proviso has no application to the appellants. Law Rep. 58 Ind. App. 440 ( 1930- 1931) Turner Morrison and C ompany, Limited V. Monmohan C howdhury 217 There remains the question as to the taluk, which was the principal issue in both the Courts. The Subordinate Judge held that the plaintiff must fail " on the ground that the intermediate taluk under which the disputed lands are held has not been annulled," and he accordingly dismissed the suit. The judgment of the High Court was delivered by B. B. Ghose J., and he came to the opposite conclusion. The learned judge refers to the taluk as an encumbrance, and speaks of a purchaser under the Act of 1859 as being entitled " to annul encumbrances," which is not, their Lordships think, in accordance with the words of the section. The learned judge refers to the taluk as an encumbrance, and speaks of a purchaser under the Act of 1859 as being entitled " to annul encumbrances," which is not, their Lordships think, in accordance with the words of the section. Some confusion has perhaps been introduced by references to the corresponding provisions of the Bengal Tenancy Act, and the voluminous case law to which it and its predecessors in the statute book have given birth ; but the two Acts are not, their Lordships think, in pari materia, and the differences" between them are considerable. No doubt under the Bengal Tenancy Act an intermediate tenure would be an " incumbrance " see ss. 159 and 161, where incumbrance is defined. But in their Lordships opinion it is not so under s. 37 of the Revenue Sales Act of 1859. This section draws a clear distinction between " encumbrances " and " under-tenures." Encumbrances are wiped out by the sale ; in the case of under-tenures the purchaser is only " entitled to avoid and annul" them, and on doing so, that is upon exercising his option to annul, he can eject all under-tenants. What is intended by the expressions " under-tenures " and " under-tenants " is shown by the exceptions that follow. The third exception refers to " talukdari and other similar tenures." These can be annulled by the purchaser unless they fall within the provisions of the exception. The taluk in the present case, therefore, is, their Lordships think, an under-tenure within the meaning of the section, and the purchasers right in respect of it is only a right to annul. It is clearly something different from an encumbrance, whatever that term may be intended to include. A similar differentiation appears in s. 11 of the Patni Regulation (VIII. of 1819), though it apparently finds no place in the Tenancy Act. Unless and until the taluk is annulled it continues the talukdar becomes the under-tenant of the purchaser and the tenants holding under him are not affected by the change of proprietorship. There is no privity of contract between them and the purchaser, and the latter cannot either claim rent from them or eject them so long as he allows the taluk to continue. The purchaser could, no doubt, sue for possession of the holdings joining both the talukdar and the talukdars tenants. There is no privity of contract between them and the purchaser, and the latter cannot either claim rent from them or eject them so long as he allows the taluk to continue. The purchaser could, no doubt, sue for possession of the holdings joining both the talukdar and the talukdars tenants. The institution of such a suit would be an effective election to annul the taluk, and the joinder of the persons in actual possession would be in accordance with the ordinary procedure. But their Lordships are unable to see what cause of action the purchaser can have against the tenants of the talukdar as long as the taluk subsists. Their contract is with him and their liability is to him and not with or to his superior landlord. Their Lordships think that no useful purpose would be served by a discussion of cases under the Bengal Tenancy Act or the preceding Rent Acts. No case has been cited to them which militates against the construction which they have placed upon the section and which seems to be in accordance with the plain meaning of the words. Reliance has been placed upon Titu Bibi v. Mohesh Chunder Bagchi (I. L. R. 9 C. 683.), where some reference is made to cases decided under the Revenue Sales Act and to the analogy to be drawn from them in dealing with sales under the Rent Acts, but their Lordships are unable to regard this as any authority upon . the construction of the section with which they have to deal in the present appeal. In Titu Bibis case the question was whether upon the sale of an under-tenure for arrears of rent under the provisions of Bengal Act VIII. of 1869, a tenure subordinate to that sold was, ipso facto, avoided by the sale, or whether it continued to subsist until the purchaser by some overt act indicated his intention to exercise his power of avoidance. The Full Bench affirmed the second alternative, but they also held that an " under-tenure" (meaning apparently a tenure subordinate to the tenure sold) was an encumbrance within the meaning of s. 66 of the Act they were considering. There is no need for their Lordships to consider whether the latter part of this decision was right or wrong, though the references in the Law Rep. 58 Ind. App. There is no need for their Lordships to consider whether the latter part of this decision was right or wrong, though the references in the Law Rep. 58 Ind. App. 440 ( 1930- 1931) Turner Morrison and C ompany, Limited V. Monmohan C howdhury 218 judgment are somewhat confusing and necessarily detract from its value. The difference between s. 66 of Act VIII. of 1869 and s. 37 of Act XL of 1859, with which alone their Lordships are concerned, is manifest. The former section says nothing about avoiding or annulling subordinate tenures it merely provides that on a rent sale the purchaser shall acquire the tenure sold " free from encumbrances." It is not disputed by counsel for the respondent that for the annulment of the taluk notice in some form or another must be given by the purchaser. That a sale for arrears of revenue does not, ipso facto, have the effect of putting an end to the under-tenure is clear from the words of the section. It was so held by this Board in Surnomoyee v. Sutteeschunder Roy (10 Moo. I. A. 123.), under an earlier Regulation in which the words used were almost emphatic in the purchasers favour. In the lower Court there does not appear to have been any suggestion that the respondent had intimated to the talukdar that his tenure was at an end. The talukdar was not joined as a party, and no issue was raised upon the point. The respondents case throughout was that there was no such taluk in existence. The High Court, however, fortify their conclusion on the main issue by an alternative finding that notice of annulment was in fact given. The talukdar, one Jatra Mohan, was examined as a witness for the appellants, and he deposed that after the sale an employee of the respondent asked him to pay najar and take a fresh settlement, which he refused to do. The learned judges thought that this was " a sufficient expression of the intention on the part of the auction-purchaser to avoid the taluk." Their Lordships are unable to accept this finding. That the talukdar did not regard it as an annulment of his tenure is clear from the fact that he received his rent from the appellants down to the institution of the suit, and there is certainly no reason for imputing dishonesty to him. That the talukdar did not regard it as an annulment of his tenure is clear from the fact that he received his rent from the appellants down to the institution of the suit, and there is certainly no reason for imputing dishonesty to him. Moreover, for ten years after the sale the respondent took no steps to assert his right to possession. But apart from this and the ambiguous character of the evidence upon which the High Court relied, it is clear that the respondent up to the last denied the existence of the taluk or any talukdari rights in Jatra Mohan. He applied to the High Court to be allowed to give further evidence in support of his appeal " for the purpose of showing that there was no intermediate tenure in existence." This application was refused and the existence of the taluk was affirmed. Their Lordships think that under these circumstances there was no justification for the finding that the respondent had exercised the option conferred upon him by the section of avoiding or annulling the taluk. In any case they think that it would be wrong to come to such a conclusion when the talukdar was not before the Court. While the appeal was pending in the High Court steps were taken by the Government for the acquisition of the plots in dispute under Act I. of 1894, and the decree of the High Court was based upon the assumption that these proceedings would be carried to their ordinary conclusion. Subsequent to the date of that decree, however, it appears that Government abandoned the acquisition proceedings, and the respondent petitioned for leave to cross-appeal to His Majesty in Council for the purpose of having the High Courts decree varied accordingly. This petition came before the Board with the appeal, but in view of the conclusion to which their Lordships have come upon the appeal, it is unnecessary for them to deal with it further. For the reasons given their Lordships are unable to support the decree of the High Court. In their opinion it should be set aside and the decree of the Subordinate Judge restored, and the respondents petition dismissed, and they will humbly advise His Majesty accordingly. The respondent must pay the costs in the High Court and before this Board.