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356 BIGHT OF OCCUPANCY.

Lkcturk must derive his profits directly from the produce.1 A

middleman who merely receives rents from the cultivators

cannot acquire such a right* Again, the right of occupancy is itself not defined, and it is not expressly said that the occupancy ryot cannot be ejected, though that may be inferred; and section 21 of Act X of 1859, re-enacted by section 22 of Act VIII of 1869 (B. C), provides that no ryot having a right of occupancy shall be ejected otherwise than in execution of a decree or order under the Act. This section relates to ejectment for arrears of rent. The holding, as we have seen, must be by cultivators: the land consequently as to which the right can be acquired must be land held for the purpose of cultivation and purposes incidental thereto." It has consequently been held that even the cultivation of water-nuts is sufficient,* but the right cannot be acquired in a tank which requires no cultivation.5 Any accretion to the occupancy jote is also the subject of the right.6 Occupation and cultivation by a mere trespasser will not give the right :7 but the fact of the ryot's paying rent to a

1 Kalee Churn Singh v. Ameerooddeen, 9 W. R., 579. Butabee Begum v. Khooshal, 2 All., 24.

'Gopee Mohun Roy r. Shibchunder Sen, 1 W. R., 68. Hurrah Chunder Roondoo c. Alexander, Marsh., 479. Woomanath Tewaree r. Koondun Tewaree, 19 W. R., 177.

a Kalee Kiahen Biswas v. Sreemutty Jankee, 8 W. R., 251. Goor Dial r. Ram Dutt, 1 Agra, F. B., 15. But see Fitzpatrick r. Wallace, 2B. L. R., A. C, 317.

* Moolchund v. Chutree, N. W. R., 175.

» Siboo Jelya c. Gopal Chunder Chowdhry, 19 W. R., 200. Nidhi Krishun Bose v. Ram Doss Sen, 13 B. L. R., 416; 20 W. R., 341, s.c.

6 Attimoolah v. Shaikh Saheboolah, 15 W. R., 149.

7 Sheikh Peer Bux v. Sheikh Meahjan, W. R., F. B., 146. Gureeb Mundul v. Bhoobun Mohun Sein, 2 W. R., Act X, 85. Ishen Chunder Ghose v. Hurish Chunder Banerjee, 18 W. R., 19; 10 B. L. R., App., 5, s.c.

RIGHT OF OCCUPANCY. 357

person not entitled to it does not prevent his acquiring Lrcturk

such a right, and he can reckon the time during which he —

paid such rent as part of the required period.1 A bye-howa

ladar, whose holding is a division of one intermediate

between the zemindar and the actual ryots upon payment

of a fixed rent to the zemindar, can, it has been held, acquire

the right.2 The right moreover does not depend upon the

payment of rent: for instance where, by the custom of the

district, no rent was payable when the land could not be

cultivated ;* a class of holding called ootbundee or

nuksan. And a mortgagee in possession is sufficiently in the

position of a landlord to enable the ryot to acquire this

right under him.* It has however been held that the

occupancy must be of the same kind throughout as regards

the ryot; and that therefore an occupancy of five years under

a pottah granted to two ryots jointly, and then a further

occupancy of seven years by one alone without a pottah

was not sufficient.5

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LECTURE X.

RELATIVE RIGHTS OP ZEMINDARS AND HOLDERS OF
UNDER-TENURBS. RIGHTS OF ZEMINDAR,

Bight of occupancy—Acquisition of the right—Transferability of the right—Effect of transfer of holding by occupancy ryot—Subinfeudation—Enumeration of sub-tenures—Enhancement and abatement of rent—Right of measurementDivision of zemindaries—Zemindar's right of alienation—Zemindar's power to lease—Succession to zemindaries—Transfer of under-tenures—Registration.

Fight of occu-1 HAVE given some account of the nature of a right of occupancy. I go on now to consider the mode of its acquisition, the way in which it may be lost, and the extent to

Acquisition of which it is transferable. With regard to the acquisition of the right, the power of the landlord to eject the tenant under a tenancy-at-will does not prevent the right of occupancy arising.1 In like manner if, after the expiry of a holding for eleven years, the tenant is allowed to remain so that he could not be ejected till the end of the twelfth year, he would have acquired a right of occupancy f and the same principle would apply to a holding during part of which the tenant was allowed to remain as a tenant-at-wilL The section expressly says that the right arises whether the holding was under pottah or not. Nevertheless, some learned Judges at first held that the right did not necessarily arise when there was a pottah for a fixed term:3 and in overruling the case referred to, it was said that an express stipulation for re-entry would be sufficient

1 Hyder Buksh v. Bhoopendro Deb Coomar, 15 W. R., 231.

'Dariao r. Dowluta, 5 All., 9.

'Damanulla iSirkar v. Mamudi Nashio, 3 B. L. R, A. C, 178.

TRANSFERABILITY OF THE RIGHT. 359

to bar the accruing of the right. However, this opinion Lkctukk was merely an illustration made use of in the later case -*»— which overruled, with the concurrence of one of the learned Judges who had originally held the other way, the decision that the stipulating for a fixed term in a pottah prevented the accrual of a right of occupancy.1 It is now therefore settled that the right may be acquired by holding under a lease or a succession of leases.2 The occupation cannot however be made up partly by the occupation of the claimant's vendor of the holding, even although the landlord consented to the transfer.3 The Act being retrospective as to the commencement of the holding, the right may be acquired by a holding partly before and partly after the passing of Act X of 1859.4

With regard to the alienability of the tenure much Transferability difference of opinion has existed. The Act, as I have before remarked, does not define a right of occupancy: it provides that the ryot holding for the prescribed period "shall have a right of occupancy in the land, so long as he pays the rent." The right is not expressed to be heritable; but it is provided that "the holding of the father or other person from whom a ryot inherits shall be deemed to be the holding of the ryot within the meaning of this section."

1 Pundit Skeo Prokash Misser v. Ram Sahoy Siogb, 8 13. L. H., 165; 17 W. R., 62, a. c.

* See also Damanulla Sirkar v. Mnmudie Nashio, 3 B. L. IS., A. C, 178; 11 W. R., 556, a.c. Khukoornissa Begum v. Ahmed Reza, 11 W. R, 89. Golam Sanja v. Hurish Chunder Ghose, 17 W. R., 552. Hooba Khan v. Munsub AH, 3 N. W. R., 37. Mukandi Lai Dubei v. Crowdy, 8 B. L. R., App., 95.

'Tara Perahad Roy r.Soorjo Kant Acharjee Chowdry, 15 W. R., 152. Hyder Buksh v. Bhubendro Deb Koonwar, 17 W. R., 179.

'Thakooranee Dassee v. Bisheskur Mookerjee, B. L. R., Supp. Vol., 202; 3 W. R., Act X, 29, s.c.

360 TRANSFERABILITY OF THE RIGHT.

LucTM!* That provisioh only refers to the acquisition of the right; and

the right, when acquired, is nowhere declared to be heritable;

and the literal meaning of the terms used would not necessarily include an hereditary quality in the right. Moreover, the right being one created by Statute, although analogous in some respect to the right of the khoodkashts, its nature cannot be ascertained by a reference to the rights of the khoodkashts or to custom. Occupancy tenants may of course have customary or other rights in addition; but it is difficult to see how these can assist in determining their rights as occupancy ryots. Apparently, the strict terms in which the right is bestowed would be satisfied by giving the ryot a personal right, neither hereditary nor transferable. Accordingly, Sir Barnes Peacock in one case doubted whether a rkrht of occupancy was heritable.1 The right of occupancy is necessarily acquired by holding upon a tenure which is either hereditary and transferable or not: and at one time it was a question whether a right to occupy and not to be ejected so long as the rent is paid is added to the rights already existing, so that it becomes part of the tenure and goes with it, being transferable when the original tenure was so. It has been held that the acquisition of an occupancy right would not render a tenure transferable which before was not so;" on the other hand, it has been said that a right of occupancy is perpetual, transferable, .and heritable." In other and later cases the right has been decided not to be

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