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LECTURE
IX.

Right of occupancy.

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terms implying perpetuity were used in the sunnud, and the rate specified was for a particular year.' And whether the words mokurreree istemrari mean permanent during the life of the grantee or imply an hereditary tenure (a point which has been much discussed, but now it would seem decided in favour of the hereditary right), such words coupled with a usage of hereditary descent are certainly sufficient to support an hereditary tenure."

We have seen that the Regulations for the Permanent Settlement expressly reserved to the Governor-General in Council the right to make such Regulations as might be necessary to protect the cultivators. This was at length acted upon in 1859, when, by Act X of that year, a new species of right, called an occupancy right, was conferred upon cultivators who had occupied their holdings for twelve years and upwards. I have mentioned that the istemrardars or mokurrereedars who had held at a fixed rent for twelve years before the Decennial Settlement were protected from enhancement: and in like manner, by the provisions of Act X of 1859, a ryot who had occupied for twelve years could not be ejected. The period of prescription in the case of land has always been twelve years in India, and this had probably some influence in determining the period chosen. Act X of 1859, section 6, re-enacted by Act VIII of 1869 (B. C.), section 6, provides that "every ryot who shall have

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1 Moohummud Ismail Jemadar v. Raja Balungee Surrun, 3 Sel. R., 346. Rajah Lilanund Singh Bahadoor v. Thakur Munorunjun Singh, 13 B. L. R., 124, at p. 133. See Mr. Macnaghten's note as to mouroosee and istemrari pottahs, 1 Sel. R., 140.

* Regulation I of 1793, s. 8, cl. 1.

✦ Ram Mungul Ghose v. Lukhee Narain Shaha, 1 W. R., 71. Kalee Kishore Chatterjee v. Ram Churn Shah, 9 W. R., 344. Haran Chunder Paul v. Mookta Soonduree, 10 W. R., 113; 1 B. L. R., A. C., 81, s.c.

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LECTURE

IX.

cultivated or held land for a period of twelve years shall have a right of occupancy in the land so cultivated or held by him, whether it be held under pottah or not, so long as he pays the rent payable on account of the same but this rule does not apply to khamar, nij-jote, or sir land belonging to the proprietor of the estate or tenure and let by him on lease for a term, or year by year, nor (as respects the actual cultivator) to lands sub-let for a term, or year by year, by a ryot having a right of occupancy. 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." This provision substantially restores the khoodkasht ryot to his former position: for probably in Hindoo times a ryot who had cultivated the same holding for twelve years would have been considered to have given the pledges required to protect him from ejectment so long as he paid the rent. It was also evidently following the principles of the ancient system that the khamar, nij-jote, and sir land were excluded; such land being in the immediate occupation or cultivation of the zemindar, or if not in his immediate occupation or cultivation, not occupied by khoodkashts. By section 7 of Act X of 1859, re-enacted by section 7 of Act VIII of 1869 (B. C.), nothing in section 6 shall be held to affect the terms of any written contract for the cultivation of land entered into between a landholder and a ryot, when it contains any express stipulation contrary thereto." The ryot mentioned in these provisions is not further defined: it appears from the sections themselves that he may continue to be an occupancy ryot after subletting, and this has been the view taken in several decided cases. It has also been held that the ryot, in order to acquire Acquisition of a right of occupancy, need not himself actually cultivate but

LECTURE

IX.

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must derive his profits directly from the produce.' 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. Occupation and cultivation by a mere trespasser will not give the right:7 but the fact of the ryot's paying rent to a

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

2 Gopee Mohun Roy v. Shibchunder Sen, 1 W. R., 68. Hurrish Chunder Koondoo v. Alexander, Marsh., 479. Woomanath Tewaree v. Koondun Tewaree, 19 W. R., 177.

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

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

5 Siboo Jelya v. 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. • 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.

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IX.

person not entitled to it does not prevent his acquiring LECTURE such a right, and he can reckon the time during which he paid such rent as part of the required period.' A bye-howaladar, 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. 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

1 Syud Ameer Hossein v. Sheo Suhae, 19 W. R., 338.

2 Ruttun Monee Dabee v. Kumolakant Talookdar, 12 W. R., 364.

3 Permanund Ghose v. Shoorendronath Roy, 20 W. R., 329.

4 Heeroo v. Dhoree, 2 All., 129.

* Sheikh Mahomed Chaman v. Ramprasad Bhagat, 8 B. L. R., 338.

LECTURE X.

RELATIVE RIGHTS OF ZEMINDARS AND HOLDERS OF
UNDER-TENURES. RIGHTS OF ZEMINDAR.

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the right.

Right 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. Right of occu- I 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 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

Hyder Buksh v. Bhoopendro Deb Coomar, 15 W. R., 231. 2 Dariao v. Dowluta, 5 All., 9.

› Damanulla Sirkar v. Mamudi Nashio, 3 B. L. R., A. C., 178.

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