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426 REGULATION XI OF 1822.

Lkcthuk of it, subject only to such conditions of renewal u — attached to the tenure at the time of settlement: saving, however, bond fide leases of ground for the erection of dwelling-houses or buildings or offices thereto belonging, or for gardens, tanks, canals, watercourses or the like purposes, which leases shall continue in force so long as the land is appropriated to those purposes and the stipulated rent paid. By section 31, the Governor-General in Council may order the sale to be made subject to all incumbrances. And by section 32, it is provided that the rules in this or any other Regulation enabling persons to annul engagements contracted between former proprietors and their under-tenants, and in certain cases to enhance the rent payable by such tenants, shall not entitle purchasers at public sales to disturb the possession of any village zemindar, putteedar, mofussil talookdar, or other person having an hereditary transferable property in the land or in the rents thereof, and not being one of the proprietors party to the engagement of settlement or his representative. Nor shall such rules authorise such purchaser to eject a khoodkasht kudeemee ryot, or resident and hereditary cultivator having a prescriptive right of occupancy. Nor shall such purchaser demand a higher rate of rent from an under-tenant of either of the above descriptions than was receivable by the former malgoozar, save where such tenants may have held their lands under engagements stipulating for a lower rate than would have been justly demandable for the land, in consequence of abatements having been granted by the former malgoozars from the old established rates by special favour, or for a consideration, or the like; or in cases in which it may be proved that, according to the custom of the pergunnab, RIGHT OF ENHANCEMENT. 427

mouzah, or other local division, such under-tenants are Lkcturk

XI.

liable to be called upon for any new assessment or other — demand not interdicted by the Regulations. I have given "these provisions fully, although now repealed by Act XII of 1841, and although I have already several times referred to them because they contain the principles and the substance of the rights of the auction-purchaser, and the restrictions upon those rights. It would seem that the mofussil talookdars here mentioned are such as are actual proprietors under section 5 of Regulation VIII of 1793, and not those whose talooks have been created since the Permanent Settlement.1 So with the other excepted tenures.3 In an important case under this Regulation before the Judicial Committee of the Privy Council, the plaintiff sued for an enhanced rent. He claimed under a private purchase from a person who bought from an auctionpurchaser at a sale in 1823 for arrears of revenue. The defendant, a talookdar, claimed to be exempt from enhancement, on the ground that she and her predecessors in title had held at a fixed rent from a time previous to the Decennial Settlement. It was held (assuming section 5 of Regulation XLIV of 1793 not to be virtually repealed, as to which their Lordships expressed considerable doubt) that the purchaser at the auction-sale had only an option under Regulation XLIV of 1793 to enhance the rent, and could not disturb the possession of the tenant. And that, consequently, the plaintiff and his predecessors, by continuing from the commencement of the tenure, during a period of more than sixty years, to receive thes ame rent, had waived

1 Khiijah Aasauoolab v. Obhoy Chunder Roy, 13 Moore's I. A., 317, at p. 326. ■ Degumber Mitter r. Cbundy Cburn Poorkyte, S. D. A. (I860), 325. 428 EIGHT OF ENHANCEMENT.

Lecturk their right to enhance, the option being one which ought to — be exercised at the time of the auction-purchase.1 They remarked that the right to enhance is in terms only giren to the auction-purchaser himself and not to his assignees' They further observe that the foundation of the provisions of the Regulation for cancelling under-tenures is that it is assumed that the default of the zemindar may have been occasioned by improvident grants at inadequate rents; that this wa1) in breach of the condition on which the fund was originally created by the sovereign, and the purchaser therefore is set free from the obligation of these grants, with certain specified exceptions, and with certain limitations of his power as to new tenancies to be created. These provisions must, however, be strictly construed. The Regulation did not authorise a wanton and unjust disturbance of vested interests where the grants made were at proper rents: consequently no absolute cancellation was intended; the power given assuming the talookdars and ryots to remain in all respects as before, except that they became liable to an increase of rent up to the pergunnah rates. The result is that the power given to the auctionpurchaser has virtually no operation where the rent already paid is at the pergunnah rate.3

1 Ranee Surnomoye v. Maharajah Sutteesohuuder Roy, 10 Moore's I. A., 123. See Joogul Kishore Roy v. Khnjuh Ahsanoollah, 4 W. R., Act X, 6. Rajah Satyasaran Ghosal v. Mahesh Chandra Mitter, 2 B. L. R., P. C, 23; 12 Moore's I. A., 263, s. c.; 11 W. R., P. C, 23, s. e. Khajah Assanoollah r. Obhoy Chuuder Roy, 13 Moore's I. A., 317; IS W. R., P. C, 24, s. c.

3 Ranee Surnomoye v. Maharajah Sutteeschunder Roy, 10 Moore's I.A., 123, at p. 148. See 1 Morley's Dig., 408, pi. 32.

* Ranee Surnomoye v. Maharajah Sutteeschunder Roy, 10 Moore's I. A., 123, at pp. 142, 147. Rajah Satyasaran Ghosal r. Mahesh Chandra Mitter, 2 B. L. R., P. C, 23, at p. 31. Karunakar Mahati v. Nilailhro Chowdhry, 5 U. L. R., 652.

AVOIDANCE OF INCUMBRANCES. 429

Act XII of 1841, Act I of 1845, and Act XI of 1859 Lectur*

XI.

made further provisions upon this subject. By section 27 -— of Act XII of 1841, a purchaser of an estate sold under the Act for arrears of revenue due in respect thereof in the permanently settled districts of Bengal, Behar, Orissa, and Benares,1 shall acquire the estate free from all incumbrances which may have been imposed upon it after the time of settlement; and shall be entitled, after notice given under section 10 of Kegulation V of 1812, to enhance at discretion (anything in the existing Regulations notwithstanding) the rents of all under-tenures in the said estate, and to eject all tenants thereof with certain exceptions. Act I of 1845, section 26, is in the same terms: but Act XI of 1859, section 37, enacts that the purchaser shall be entitled to avoid and annul all under-tenures, and forthwith to eject all tenants, omitting the provision for notice. These provisions have been held to get rid of a title created by adverse possession.2 But an auction-purchaser, it has been held, cannot enhance chur lands accreted and assessed since the Decennial Settlement, except under section 51 of Regulation VIII of 1793, and clause 2 of this section, and of section 26 of Act I of 1845, to be presently mentioned. Such a tenure must be treated as if it dated from before the Decennial Settlement.3 The exceptions are4

(1.) Tenures which were held as istemrari or mokurreree at a fixed rent more than twelve years before (by Act XI of 1859, section 37, 'from the time of) the Permanent Settlement.

1 Benares is omitted in s. 37 of Act XI of 1859.

'Thakoor Dass Roy Chowdhry v. Nubeen Kisben Ghose, 15 W.R., 552.

1 Kishenkinkur Roy v. Brown, S. D. A. (1858\ 1521.

'Act XII of 1841, s. 27, cl. 1. Act I of 1845, s. 26, cl. 1.

430 NON-VOIDABLE TENURES.

L*ctur« (2.) By Act II of 1841, section 27, clause 2, and ~~~ Act I of 1845, section 26, clause 2, tenures existing at the time of the Decennial Settlement, which have not been, or may not be proved to be, liable to increase of assessment upon the grounds specified in Regulation VIII of 1796, section 51. But the corresponding clauses of Acts XI of 1859 and VII of 1868 (B.C.)1 omit all reference to Regulation VIII of 1793, and except tenures existing at the time of the Permanent Settlement, which have not been held at a fixed rent. But such tenures shall be liable to enhancement under any law in force for such enhancement.

(3.) By Act XII of 1841, section 27, clause 3, and Act I of 1845, section 26, clause 3, lands held by khoodkasht or kudeemee ryots, having rights of occupancy at fixed rents, or at rents assessable according to fixed rules under the Regulations and Acts in force, are excepted. This exception is omitted in Act XI of 1859, and in place of it talookdary and other similar tenures are excepted; such tenures being created since the time of settlement, and held immediately of the proprietors of estates; as well as farms for terms of years so held, when such tenures and farms have been duly registered under the provisions of the Act. This clause is omitted in Act VII of 1868 (B.C.), section 12.

(4.) By section 27, clause 4, of Act XII of 1841, and section 26, clause 4, of Act I of 1845, another exception is of lands held under bond fide leases at fair rents, whether temporary or perpetual, for the erection of dwelling-houses or manufactories, or for mines, gardens, tanks, canals, places of worship, burying grounds, clearing of jungle, or the like

* Act XI of 1859, s. 37, cl. 2; and Act VII of 1868 (B.C.), s. 12.

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