Right of Occupancy

What does a right of occupancy mean?

A judgment by the Allahabad High Court in 1885.

The plaintiff is the zamindar of the village, and some of the defendants had an occupancy-holding in the village. They executed a document in favour of the other defendants, by which, in consideration of a particular sum of money, it was agreed that the latter should have the right of occupying and cultivating as tenants for a term of years at a nominal rent. 

In pursuance of this agreement, the original occupancy-tenants went out, and the persons who had advanced the money and taken the zar-i-peshgi lease, took possession, and are now in occupation and cultivation of the holding, either by themselves or through their servants. 

The zamindar now sues them for ejectment, alleging that they are not his tenants. 

The defendants plead that they have the same right as the original occupancy-tenants had. 

The question is, whether the zar-i-peshgi lease has given the defendants such a right, and whether the zamindar is entitled to object to that transaction.

What does a right of occupancy mean?

Under the Rent Act which provides that no right of occupancy, other than the right of tenants at fixed rates, "shall be transferable in execution of a decree, or otherwise than by voluntary transfer between persons in favour of whom, as co-sharers, such right originally arose, or who have become by succession co-sharers therein." 

The persons now in possession were not co-sharers with the persons from whom they obtained possession, so that the transfer to them cannot be considered a "voluntary transfer between persons in favour of whom, as co-sharers, such right originally arose." 

A right of occupancy is to mean nothing but the right to live on and cultivate the land as one's own. That is what the original tenants possessed, and they have sold this right to live on the land for twenty years.

 This is not a transfer of the right of occupancy. It is a sale of that right, and therefore it is a transfer, and is prohibited by Section 9 of the Rent Act. No interest therefore passed under the transaction, and the persons, now in possession have no right, and are trespassers against the plaintiff, who is entitled to eject them. 

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