Babu Harihar Prasad Singh vs Gharbharan Koeri and Others

Kulwant Sahay, J.—This is an appeal by the plaintiff against the decision of the Additional Subordinate Judge of Shahabad, dated the 10th January 1922, whereby he reversed the decision of the Munsif and dismissed the suit of the plaintiff.

The suit was for ejectment of the defendants from 13 decimals of land in Mouza Bhelain on the allegation that the said land was the gair mazrua parti land of the proprietor. The plaintiff is admittedly the 16-annas malik of the mouza; and his case is that the 13 decimals of gair mazrua land were settled with the ancestor of the defendants over which they built a house and began to live therein. The condition of the tenancy as alleged by the plaintiff was that the defendants were to render service by ploughing the proprietors'' land and doing transplantation work for four days in the year, and by drawing water from the well, and supplying vegetables at six pies per paseri on ceremonial occasions; that the defendants had refused to render the service and a notice was served upon them requiring them to quit the land; that the term of the notice having expired, and the defendants having refused to quit the land the present suit was brought by the plaintiff for ejectment of the defendants.

The defence was that the land in dispute was not a service tenure of the defendants but that it was a homestead land and formed a part of the ancestral kasht holding of the defendants. The conditions of the service alleged by the plaintiff were denied; and it was further averred that no notice to quit was served upon them.

The learned Munsif held that the homestead land in dispute was not a part of the tenancy holding-of the defendants and that the incidents of the tenancy as regards the land in dispute were as alleged by the plaintiff, and that the tenancy of the defendants will not be governed by the Bengal Tenancy Act. He held that the defendants had refused to render service and as such were liable to ejectment. He found that the notice to quit has been proved to have been served on the defendants: and he accordingly made a decree for ejectment.

On appeal by the defendants the learned Subordinate Judge held that the plaintiff had failed to prove that the tenancy of the defendants was on condition of rendering service. He held further that the entry of belagan in the Survey khatian as regards the land in dispute merely indicated that no rent was paid for the land and that such an entry signified nothing more. The Munsif had held that the entry of belagan was only consistent with the allegation of the plaintiff that the tenancy was a service-tenure and, therefore, no rent in cash or kind was paid for the land and he drew an inference from such entry that the conditions of the tenancy being various and numerous and also unrestricted by the provisions of the Bengal Tenancy Act the Survey Authorities entered the land as belagan.

In second appeal by the plaintiff it has been contended that the learned Subordinate Judge has misconstrued the entry of belagan in the Survey khatian and has drawn erroneous presumption therefrom. It has further been contended that the learned Subordinate Judge was wrong in holding that the tenancy of the defendants was not a service-tenure.

It appears that in the khatian the defendants were recorded as qaimi tenants in respect of 5 khasra plots in khata No. 74. Four of these plots were agricultural lands and the fifth was plot No. 1014 which was the homestead land now in dispute. As regards the four plots other than the plot No. 1014 the case of the present plaintiff was that those plots were not the tenancy holding of the defendants but were the zirait land of landlord which were temporarily settled with tenants from time to time, and sometimes cultivated directly by the landlord, There was proceeding u/s 145 of the Cr.P.C. in respect of the four plots referred to above and the plaintiff was declared to be in possession thereof. The present defendants brought a title suit for a declaration of their title as raiyats of those four plots and the Munsif dismissed the suit on a finding that it had not been proved that the plaintiff of that case (the present defendants), had any qaimi or occupancy right therein. The Munsif further found that it had not been proved that the then plaintiffs were settled raiyats of the village and he further found that the plaintiffs of that suit were out of possession for more than two years and the suit was barred by limitation.

Now, this judgment of the Munsif in the title suit was passed on the 10th of April 1922 and an appeal was preferred against it and it was pending before the Subordinate Judge at the time the Munsif, decided the suit out of which the present appeal arises. He referred to the finding of the Munsif in the title-suit and as the matter was pending to appeal and the decision had not become final he refrained from coming to any finding as regards the defendants being settled raiyats of the village. In this Court an affidavit has been filed on behalf of the appellant to the effect that the appeal of the present defendants in the title suit referred to above has been disposed of by the Subordinate Judge whereby the decision of the Munsif in that suit has been affirmed. A copy of the judgment of the Subordinate Judge dated the 28th March 1923 has been produced with the affidavit. In this judgment the Subordinate Judge has found that none of the four plots in dispute in that case had been in possession of the then plaintiffs (the present defendants) or their father for a period which would have given them a right of occupancy in the land and that the plaintiff had entirely failed to show that he had held any land or parcel of land as raiyat in the village for a period of 12 years. In the affidavit filed on behalf of the plaintiff it is further stated that this judgment of the Subordinate Judge has become final, no appeal having been preferred against it. It has also been stated in the affidavit that the defendants-respondents in the present case have no kasht land either in the village Bhelain or in any other village.

Objection has been taken on behalf of the respondents to the affidavit and the Copy of the judgment of the Subordinate Judge in the title suit filed with it being taken or referred to in this appeal. I am of opinion that having regard to the circumstances of the case it is open to the appellant to produce this judgment in this second appeal and that it is open to this Court to refer to it. As an authority for this view, I need only refer to the decisions of the Calcutta High Court in Ram Ratan Sahu v. Mohant Sahu 6 C.L.J. 74, Hazari Mull v. Janaki Prosad 6 C.L.J. 92 and Ramyal Sahu v. Bindeshri Kumar Upadhya 6 C.L.J. 102. The facts stated in the affidavit have not been denied on behalf of the respondents. The position, therefore, is that the defendants are not raiyats of any land in village Bhelain or in any other village and the land in dispute is the only homestead land of which they are in possession.

As regards the nature of the defendants'' tenancy although the Munsif on a consideration of the evidence found that the tenancy was on condition of rendering service as stated by the plaintiff yet on appeal the learned Subordinate Judge has come to a contrary conclusion. His finding that the tenancy is not a service-tenure is a finding based upon the evidence in the case and must be accepted as conclusive in the present appeal.

The position, however, of the defendants is that they have got a tenancy right in the 13 kathas of land which is not a part of any other holding of theirs as a raiyat and, therefore, such tenancy is not governed by the provisions of the Bengal Tenancy Act. Reference has been made by the learned Vakil for the respondents to Section 182 of the Bengal Tenancy Act. In the first place the learned Subordinate Judge does not base his decision upon Section 182. In the second plaice it has now been established by competent Court that the defendants have got no holding as a raiyat either in the village Bhelain or in any other village and, therefore, the provisions of Section 182 are not applicable and the incidents of the defendants'' tenancy of the homestead land in dispute are not governed by the provisions of the Bengal Tenancy Act. This being so it is clear that the defendants'' tenancy must be considered either as a tenancy at will or a tenancy from year to year and as such is liable to be terminated on a proper notice to quit. It has been found by the Munsif and this finding has not been displaced by the Subordinate Judge that a proper notice to quit was served on the defendants. It is clear, therefore, that the defendants have no right to remain on the land against the wishes of the plaintiff. I fail to understand upon what ground the defendants can claim a right to remain on the land without payment of any rent to the landlord. The mere fact of the defendants having constructed a dwelling house on the land in dispute and having been in possession thereof for any length of time will not give them a title to remain oil the land permanently as rent-free tenants. Reference may in this connection be made to the decision in the case of Prosunno Coomaree Debea v. Sheikh Rutton Bepary 3 C. 636 : 1 C.L.R. 577 : 1 Ind. Dec. 1026.

I am, therefore, of opinion that the plaintiff-appellant is entitled to decree for possession. The decree of the Subordinate Judge will, therefore, be set aside and that of the Munsif restored. The appellants are entitled to their costs throughout.