Banwarilal Agarwalla and Others vs Ankurnath Banerjee and Another

Lakshmikanta Jha, C.J.—This is an appeal by the heirs of the original plaintiffs in a suit in which the defendant No. 1 (hereinafter referred to as the defendant) claimed a ''korkar'' right. Both the Courts below have dismissed the suit.

The only question for decision is whether the defendant can be evicted from the land in suit. The case of the plaintiffs, who are co-sharer landlords, is that the land in dispute is ''bakasht'' of the ''maliks'' and they are entitled to joint possession. The case of the defendant, on the other hand is that the land was originally waste land and that he has made it fit for cultivation of transplated rice. He accordingly claims ''korkar'' right and contends that he has acquired an occupancy right therein and is not liable to eviction. He also pleaded settlement of the land from all the co-sharer landlords.

The Court of appeal below has held that the defendant has acquired ''korkar'' right and has acquired an occupancy right in the land in dispute and cannot be evicted.

The contention of Mr. Mazumdar, on behalf of the plaintiffs, is that the defendant is a colliery owner and not a cultivator and, therefore, he could not acquire any ''korkar'' right in the land in suit. 1 do not think there is any substance in this contention. A person may be a colliery owner and even then he may be a cultivator. The word "cultivator" used in Section 64 of the Chota Nagpur Tenancy Act has not been defined in the Act. Therefore, it must be understood in its ordinary dictionary sense. Anyone who cultivates land either himself or with the help of his servants or labourers may be a cultivator. The defendant has been found to be a cultivator by the Courts below. Therefore, on this finding, the contention of Mr. Mazumdar cannot prevail.

The next question is whether the defendant has acquired an occupancy right in the suit land. The defendant came into possession partly in 1943 and partly in 1944. The present suit was instituted in June 1946. According to the defendant, although the plaintiffs had notice of the fact that he was in actual cultivating possession of the suit land, they did not seek his eviction before the Deputy Commissioner u/s 64(3) of the Act. It must, therefore, be presumed that the defendant was in cultivating possession of the land in suit as ''korkardar'' to the knowledge of the plaintiffs. Accordingly, u/s 67 of the Act, the defendant had acquired an occupancy right and the plaintiffs cannot eject him.

The defendant''s case was, as already stated, that he took settlement of the suit land from the 16 annas landlords. But the finding of the Court of appeal below is that he failed to prove settlement from the plaintiffs. According to the finding, the defendant took settlement of the land from the 8 annas co-sharer landlords only, partly in 1943 and partly in 1944, and he was in possession since. Therefore, even if the defendant be held not to have acquired any ''korkar'' right, he cannot be evicted by the plaintiffs in the present action, be cause this is not a suit for joint possession and partition of the milkiat interest. The appeal must, therefore, be dismissed with costs.