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TMI Blog1920 (12) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 having applied for a temporary ijara settlement of all the mahals, etc., ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, and the words of the kabuliyat are as follows: Having fixed a ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 such in the other case, and that in the light of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and because from the date of the lease granting, them that jote down to the present time they have occupied it for twelve years and upwards, and consequently must be regarded as having a right of occupancy. It seems to us that if there is anything clear in regard to a right of occupancy as defined by Act X of 1859, it is a right Accruing to a raiyat and not to persons who are middlemen. It would be, we think, a monstrous straining of the law to apply the term right of occupancy' to such an estate as this. 8. Their Lordships do not consider that this will found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them: but it is the finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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