Beni Chaudhuri and others vs Trilokenath Tewari and another

This appeal arises out of a suit brought by the plaintiff for a declaration of his status as the Gujashiadar raiyat with respect to the lands in question about 42 acres 33 decimals situate in Mouza Rajpur Kalan Dearah Parsanpali, and that the defendants Nos. 1 to 27 and 29 are his Shikmidars. Defendant No. 28 is the Maharaja of Dumraon who is the proprietor of the mouza. Defendants Nos. 13 to 15, 23 and 24 did not appear in the suit. Defendant No. 22 confessed judgment and relinquished the lands. Defendants 25 to 27 admitted the plaintiff''s right. Defendants 1 to 12, 16 to 21 and 29 as well as the proprietor defendant No. 28 contested the suit by urging that the plaintiff is a tenure-holder in respect of the lands in dispute and that the defendants are occupancy raiyats in respect thereof.

The Court below has decreed the plaintiff''s suit. Out of the contesting defendants, only defendants 7 to 10 have appealed to this Court. The plaintiff as respondent resists this appeal. The Maharaja has also entered appearance. The learned Vakil, who appeared on his behalf, supports the appellants.

The lands in dispute were settled first with the plaintiff''s father in the name of Tilakdhari Thakur and Ramyad Rai on 20th Asadh 1299, per Patta (Exhibit 1), for 9 years, from 1299 to 1307. After the expiry of the above lease, the lands were settled with the plaintiff, his father being dead by that time, for 9 years from 1308 to 1316. The plaintiff''s case is that the lands in question have been in his possession for a continuous period from 1299 up to date as a cultivating tenant and raiyal thereof and that the lands were sub-let to the defendants only for a year in 1315 and that they fraudulently got their names recorded in the survey record-of-rights as the occupancy tenants of the lands and the plaintiff is a tenure-holder. The survey record-of-rights was finally published in 1912. The plaintiff disputes the correctness of the entry and seeks a declaration with respect to his status as occupancy raiyat and that of the defendants as merely Shikmidars. The tenants defendants urge that they have been in possession of the disputed lands from before the date of settlement relied upon by the plaintiff and assert that the entries in the record-of-rights are correct.

Therefore the simple question for determination in the case is whether the plaintiff is a cultivating tenant of the lands in question, or is a tenure-holder.

"Section 5 of the Bengal Tenancy Act defines "tenure-holder" as meaning primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and includes also the successors-in-interest of persons who have acquired such a right". Clause (2) of the section defines a "raiyat" as meaning:-

"Primarily a person who has acquired such aright to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors-in-interest of persons who have acquired such a right."

Clause 3 of the section says

"A person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure-holder."

Clause 4 says

"In determining whether a tenant is a tenure-holder or a raiyat the Court shall have regard to (a) local custom and (b) the purpose for which the right of tenancy was originally acquired."

Clause 5 says

"Where the area held by a tenant exceeds one hundred standard bighas, the tenant shall be presumed to be a tenure-holder until the contrary is shown."

In the present case the land in dispute is only 42 acres 33 decimals, and the lands settled by the plaintiff per Pattas (Exhibits 1 and 2) referred to above did not exceed 100 standard bighas. Therefore clause (5) has no application and there will be no presumption as to the plaintiff being a tenure-holder.

The plaintiff was let into the occupation of the lands by means of two Pattas, referred to above, of such a recent date as the year 1299, (that is 1891). The terms of these Pattas clearly indicate that the lands were let out for the purpose of cultivation. The lessee was by the terms of the Patta prohibited from making settlement of the lands with any other person, or granting Shikmi Patta in respect thereof, and from planting any kind of trees or bamboos or building houses on the lands which would naturally interfere with the cultivable nature of the land. There is also a clause in the lease that the lessee will keep the land in his sir zerait of cultivation

The aforesaid terms of the Patta not only make the purpose of the tenancy strictly agriculture or cultivation, but also prohibited the lessee from establishing tenants thereon, a right which belongs to a tenure holder under the definition referred to above. Therefore the leases whereby the plaintiff and his father were granted these lands are clear, and unambiguous and explicit to confer only the cultivating rights and are against his acquiring the right of a tenure holder. Here, the determining factor as to the status of the plaintiff is to be found in the leases which declare the purpose for which the right of tenancy was originally acquired, as is expressly set forth in sub-clause (3) of clause (4) of Sec. 5.

The learned Vakil on behalf of the appellants very frankly and rightly concedes that upon the terms of the lease the plaintiff could not be held to be a tenure-holder. The evidence in the case given by the parties clearly shows, that the lands were let out for cultivating purposes; that the plaintiff cultivated it for some time and thereafter the defendants. This is the evidence on behalf of the defendants themselves, for it is admitted by the defendant himself in his deposition that the plaintiff''s father first got a lease 33 years ago in respect of these lands and thereafter the plaintiff got it.

Therefore the survey record-of-rights is obviously incorrect. The lands were at that time held by the defendants appellants under a sub lease as Shikmidars under the plaintiff and therefore the survey authorities recorded the plaintiff as a superior landlord of the appellants describing his status as a tenure-holder; whereas the plaintiff was only a cultivating raiyat and the defendants were Shikmidars under him. It is said that it appears from the order sheet (Exhibit A) of the survey proceedings that the plaintiff himself was present in person at the time during the survey proceedings, but he objected only to the amount of rent payable by the defendants and did not make any objection as to his status or that of the defendants as recorded in the proceedings under S 103(A). This may be so, but the presumption afforded by the survey record-of-rights, is a rebuttable one. The conduct of the plaintiff might strengthen the presumption which nonetheless remains rebuttable. The question is whether in the present suit, which is brought within six years from the final publication of the survey record-of-rights, the plaintiff has been able to rebut the presumption and to show that the entries therein are incorrect.

The plaintiff in this case has been able to show from the very Pattas, the documents whereby he was let into the occupation of the lands, that the purpose of the tenancy was only for cultivation and therefore the entries in the survey record of rights are on the face of them incorrect. It may be that the survey authorities did not apprehend the two scope and meaning of section 5, namely, that where the purpose for which the tenancy was originally created is known and clearly proved, then no other presumption as to the tenancy being otherwise than what the original purpose is, is admissible. Therefore the defendants-appellants were merely Shikmidars of the plaintiff.

But it is said that the alleged settlement of the land in question, which was made by the plaintiff with the defendants in the year 1315, must be held to be impossible or improbable in view of the fact that the survey operations had then already commenced or were about to commence. It is said that the plaintiff at that stage would not sub-let any land lest the defendants would have been successful in recording their names as occupancy raiyats, as they have done in the present case. This again is only a probability. The Court below has held upon the evidence in the case that the settlement was made in the year 1315, only for a year. This inference he draws from the absence of any rent receipt filed by the defendants-appellants showing that they held the lands prior to 1315. Therefore there may be probabilities on both sides, namely, as to whether the lands were held by the defendants before 1315, or whether they were let into the occupation thereof for the first time in 1315. But the question as to when the lands were settled by the defendants with the plaintiff does not go to the root of the case, namely, as to whether they had any status higher than that of a Shikmidar. To prove that, it was said that they were holding these lands long before the plaintiff came upon the scene and took the lease in the year 1299. The case set up by the defendants has signally failed. The learned Subordinate Judge very rightly points out that if the defendants were holding the lands from before 1299 they would certainly have used the rent receipts granted by the Dumraon Raj, bat they have not done so.

The following passage from the judgment of the learned Subordinate Judge would seem to dispose of the contention of the defendants conclusively:-

"The evidence on the side of the defendants shows that the lands came into the possession of the plaintiff''s father at least 35 or 36 years ago. They say, however, that they had obtained raiyati settlement thereof 4 or 5 years before that; but apart from the oral testimony of a few of the defendants and some of their caste-men, there is nothing substantial in support of that story, though it was capable of being proved by very satisfactory evidence. It is said that at the time of the settlement of the lands to them by Raj Tehsildar, Khesra papers were written out showing how much land was let out to each and the rental thereof; that those Khesra were signed by the tenants and that they got documents from the said Tehsildar with every detail entered therein. Not a scrap of those papers is forthcoming and no attempt was made to have those papers before the Court. It is further said that rent receipts were received from the Raj; but not a single one thereof is forthcoming. The allegation is, however, that owing to flood all those papers were washed away. That may or may not be true so for as the papers in possession of the tenants defendants are concerned, but cannot, on any account, be alleged with regard to the papers in the possession of the Raj. It cannot be denied that the Raj is on the side of those tenants defendants, and it cannot, therefore, be urged, with any show of reason, that it was difficult for them to have those papers from the proprietor. Again it appears that the lands were every year measured on behalf of the Raj and that it was the plaintiff''s servants who got the work done, the defendants or any of them not taking any interest therein. If they had any Qaimi right in the lands, as they now allege they had, they would not certainly have kept themselves so much aloof while the lands were being measured. Furthermore, these measurement papers, if produced, would surely have shown whether the defendants had any concern with the lands before 1315 fasli. The defendants, however, remained quite apathetic in the matter."

Thus the learned Subordinate Judge is right in declaring the status of the defendants as mere Shikmidars.

Mr. Siveshwar Dayal then contends that, although the plaintiff was a cultivating tenant of the land, he has failed to show he is a "Gujashtadar raiyat" thereof which he seeks to be declared.

This contention is based upon the words "zerait" occurring in the following concluding sentence of the lease:-"after the expiry of the term of the Patta, the proprietor has power by all means to keep the land in his seer zeraitor, make settlement with the aforesaid persons or with some other person."

The use of the word "Zerait" in the above passage is in itself not sufficient to show that the land was really zerait. The words "seer zerait" there really mean cultivation, that is, after the expiry of the lease the proprietor reserves to himself the right to cultivate the land himself or to settle it with some other person. If the lands were zerait, they would have been described in the beginning of the lease where the lands were mentioned as is usually done in leases of zerait lands. The description of the land as zerait in a lease will not be any evidence to show that the land was really zerait, for there must be evidence under Sec. 120 of the Bengal Tenancy Act to show either that the land was held in the seer cultivation of the landlord for 12 continuous years immediately before the passing of the Act, or that it was recognized by village usage as proprietor''s Khamar, zerait, seer, nij jote or Kamat. There is no evidence under clause (a) of the section as to the land having been ever in the direct possession of the landlord before the passing of the Bengal Tenancy Act, nor is there any evidence of the land being known or recognized by village usage as zerait of the landlord. Clause (2) of S. 120 allows the evidence of the lands being specifically let as proprietor''s private land before the 2nd of March 1883; but the lease in question, assuming that the land was let out as seer zerait, which was not, was of the year 1891 long after the year 1883. Therefore the leases in this case cannot be accepted as any evidence of the character of the land being zerait.

On the other hand, the defendants-appellants in their written statement admitted the raiyati interest of the lands, inasmuch as they claimed their occupancy right in the same. The Maharaja also did not claim the lands as zerait in his written statement. The evidence in this case of both sides pointed to the land being the raiyati, and not seer zerait. If really the land was the seer zerait and the plaintiff had not acquired any right of occupancy and was a mere trespasser after the expiry of the lease, certainly the Maharaja would have contested the claim of both the plaintiff and the defendants as being trespassers of the land, he himself being entitled to seer possess on of the same after the expiry of the lease, as he did successfully in the case of Jogendra Singh and Others Vs. Maharaja Kesho Prasad Singh, , but no evidence has been given on his side, though he was a contesting defendant, that the land was really zerait and let out as such. The Maharaja has not appealed even from the decree and the finding of the Court below. He does not even claim to raise the question as to whether the land was zerait or not.

In the circumstances therefore the only inference is that the land is not zerait and that the defendant haying held it as a raiyat for a continuous period of over 12 years under the lease acquired the right of occupancy therein, and that the learned Subordinate Judge was right in declaring his status as Gujashtadar raiyat.

The result is that we uphold the decision of the Court below and dismiss the appeal with costs to the plaintiff respondent.