1920 (12) TMI 3

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....ad that they are occupancy tenants and as such entitled to maintain possession under the terms of Act X of 1859 (the Bengal Rent Act). 2. The appellants are the successors by transfer to the 6rm of Jardine, Skinner & Co., who were, prior to 1864, in occupancy of the lands, the Zemindar at that time being the respondent's father, to whom he has succeeded. In that year the respondent's father raised an action against Jardine, Skinner, & Co., claiming the lands in question. That suit was compromised. At the same time Jardine, Skinner & Co. took a lease of the whole taluk within which the lands were situated. Patta and Kabuliyat were executed. 3. The kabuliyat executed by the Manager of Jardine, Skinner & Co. bears as follows: "I ....

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....th, and that if after the fair rent is settled according to the proper rate prevailing in the villages I refuse to pay that rent, then you will bring the lands under your khas possession by evicting me therefrom; and I shall not be able to make any objection to the same." 4. The case accordingly depends upon the proper interpretation of this clause in the ijara. The learned Judges of the Appellate Court have held that the clause is practically indistinguishable from the clause which was the subject of decision by this Board in the case of Jardine, Skinner & Co., v. Ranee Sarut Soondari Debi 5 I.A. 164 : 3 C.L.R. 140 (P.C.) : 3 Sar. P.C. J. 847 : Bald. 168. There, as here, there was a lease of other lands besides the lands in question, an....

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....i jote" is used when an undoubted right of occupancy is being dealt with. The only distinction that can be drawn between the clause in that case and in this is that a special covenant is inserted in this case fixing the old rent of Rs. 1,300 as the rent to be paid on holding over till such time as a new rent is fixed, while in the other case there is silence as to this. But this covenant is nothing more than an expression of what the law would hold without it and cannot, in their Lordships' opinion, alter the general construction of the document. 7. The appellants' Counsel further urged that the present case was not ruled by the other because he said that in this case there was an antecedent occupancy right, whereas there was no ....