Anantpal Ram Pande and Others vs Kumar Kamakhya Narain Singh

Agarwala, J.—The plaintiff, the proprietor of the Ramgarh Raj, instituted the present suit for recovery of certain land alleging that the defendants were tenure-holders liable to ejectment on notice and that notice to vacate the land had been given to the defendants. The defence was that the defendants were occupancy-raiyats and that the village was settled with their ancestors for reclamation. The first Court held that the defendants were tenure-holders liable to ejectment on notice and decreed the plaintiff''s suit. That decision has been confirmed in appeal by the defendants. The defendants have preferred this second appeal. There is no evidence as to the origin of the defendants'' tenancy, but in khewat No. 2 in Col. 4, headed "character of interest" are the words "thica bemiadi."

The next column states that the land was "not resumable" and it is also stated that the rent was liable to be enhanced as and when more land was reclaimed. The contention of the learned advocate for the appellants is that these entries, properly construed, mean that the defendants are occupancy-raiyats. It is argued in the first place that the word "thica" denotes a raiyat, but that even if there be any ambiguity about this, the fact that the land is said to be non-resumable and that the rent was liable to progressive enhancement as it was brought under cultivation shows that the defendants'' interest was permanent.

The learned District Judge found that there was no satisfactory evidence to show that the defendants held either under a reclamation or cultivating lease or that the defendants had in fact reclaimed or cultivated any land in the village, but that on the contrary all the land comprised within the tenure was in the cultivating possession of one Manbodh Mahto and had been in the cultivating possession of Manbodh Mahto''s family for many years. In the case of Bulaki Mian v. Tikaitni Kosilya Kuari First Appeal No. 183 of 1919 which was referred to in Tikait Krishna Prasad Singh Vs. Budhan Manjhi and Others, it was held that if no portion of the tenure has been reclaimed by the tenant, this is a ground for holding that the tenancy is not permanent.

On the ground that the defendants have failed to prove that they had reclaimed any portion of the land and also on a consideration of other evidence in the case, the learned Courts below have come to the conclusion that the defendants'' tenancy was not of a permanent character. With regard to the argument based on the description of the tenure as "non-resumable" in khewat No. 2, it was found by the first Court to be wrong. This finding has not been reversed by the appellate Court, but the learned District Judge held that the fact of the tenure being non-resumable was not inconsistent with its being of a temporary character. The definition of a resumable tenure in Section 3(24), Chota Nagpur Tenancy Act, is:

A tenure which is held subject to the condition that it shall lapse to the estate of the grantor and be returnable by him or his successor in title (a) on failure of male heirs of the body of the original grantee in the male line, or (b) on the happening of any definite contingency other than referred to in Clause (a)

As the learned District Judge has pointed out, it is possible that a tenancy from year to year terminable by notice might not be resumable on the failure of male heirs of the original grantee and hence the description of a tenure as "non resumable" does not necessarily imply that it is not of a temporary nature. With regard to the remark in the khewat that the rent was liable to progressive enhancement as more land was brought under cultivation, the learned District Judge has pointed out that at the time of the survey the entire area of the tenure was already in the cultivating possession of Manbodh and therefore the remark in the khewat had no meaning. I see no ground therefore for holding that the decision of the Courts below that the defendants'' tenancy is not of a permanent nature is wrong.

With regard to whether the defendants are raiyats or tenure-holders, the learned advocate for the appellants has relied upon the remarks in paras. 191, 193 and 194 of the Survey and Settlement Operations in the District of Hazaribagh 1908 to 1915 where it is pointed out that in the District of Hazaribagh the actual payers of rent are, according to the loose phraseology of the district, called thikadars although they are not farmers of rents which is what the word "thikadar" means in other districts. On the basis of these remarks in the Settlement Report the learned advocate for the appellants contends that the word "thikadar" in the khewat should be held to mean a raiyat and not a mere collector of rent. On a consideration of the evidence in the case, the Courts below have held that the defendants have never cultivated any of the suit lands and have also held that the evidence relied upon by the defendants in proof of their raiyati interests is not sufficient, for the purpose.

The learned advocate contended that in view of the entry in the Record of Rights the onus of proving that the defendants were tenure-holders lay on the plaintiff; but this is not a case where the point to be considered is whether the entry in the Record of Rights has been rebutted but the meaning of the entry itself. The land lies within the zamindari of the plaintiff and he is entitled to possession of it unless the defendants can shew that by reason of some contract or rule of law they are entitled to possession in preference to the plaintiff. The evidence on which the defendants rely is in the main the entry in the khewat, but that entry, as has been shown, is not inconsistent with the defendants'' tenancy being of a temporary nature.

The other evidence in the case has led the Courts below to a finding of fact that the defendants have not a permanent tenancy. No ground has been made out for interfering with the decision of the Courts below in second appeal. The appeal is therefore dismissed with costs.