Bibharani Devi vs Rampada Paul

S.R. Das Gupta, J.—These two appeals arise out of two suits instituted in the lower court being Suit No. 42/90 of 948/1947 and Suit No. 43/91 of 1948/1947. Both these suits as also another suit instituted between the same parties being Suit No. 44/92 of 1948/1947 are covered by one judgment of the trial court and one judgment of the lower appellate court. The trial court found against the Plaintiffs. Against the said decision of the trial court, so far as it related to suit No. 44/92 of 1948/1947, there was no appeal and consequently the same remained binding on thee Plaintiffs. The Plaintiffs however preferred appeals against the decision of the trial court so far as it related to the other two suits namely, Suit No. 42/90 and Suit No. 43/91. The lower appellate court dismissed the said appeals and it is against that decision that the present appeals have been preferred to this Court.

The learned advocate for the Appellants in the first instance urged a ground which is common to both the appeals. The question raised by the learned advocate, shortly put, was whether or not a person holding from one of the proprietors was a raiyat within the definition of the word raiyat as given in the Bengal Tenancy Act. If he was a raiyat then he would come within the exceptions of Section 37 of the Bengal Land-Revenue Sales (West Bengal Amendment) Act, 1950 (West Bengal Act VII of 1950). The facts necessary to be set out in order to appreciate this point are as follows:

On June 24, 1935, Touzi No. 4431 of the Burdwan Collectorate was sold in a revenue sal. One Charu Chandra Dutta purchased the said Touzi. He thereafter sold it to the Plaintiffs. The present suits were instituted by the Plaintiffs against the Respondents for recovery of possession of several plots in the said Touzi. The Defendants'' case in Suit Nos. 42/90 and 44/92 was that there were two plots being C. S. plots Nos. 4585 and 4586 which consisted sub-plot in the western side. These plots exclusively belonged to Prangobinda, Dolgobinda, Kartick and Ganesh. On an amicable partition Kartick and Ganesh got western kita and Prangobindo got the two eastern kitas, Thereafter Kalachand Pal who was Defendant in Title Suit No. 44 took raiyati settlement of the western kita from Ganesh and Kartick Pandit and Easheswari, the Defendant No. 2 in Title Suit No. 42/90, took raiyati settlement of the two eastern kitas from Prangobinda. The other Defendant Rampada had no concern with the said lands. Since the said settlement Kalachand and Rasheswari are in possession of these lands on payment of rent. The Plaintiffs'' case was that u/s 37 of the Bengal Land Revenue Sales Act, 1950, they were entitled to annul these settlements and get khas possession thereof. The other suit, that is Suit No. 43/91 of 1948/47 related to plots Nos. 6848 and 6525. The prayer of the Plaintiffs in respect of these plots were also the same. I should have mentioned that in all these suits there was an alternative prayer, namely, that if the Plaintiffs were not entitled to obtain a decree for ejectment, a fair and equitable rent be settled in respect of the said plots. The trial court held that it appeared from ext. A(1) that Ganesh and Kartick had granted settlement of the western one kitta to Kalachand on Jaistha 30, 1336 B.S. and it appeared from ext. A that Prangobinda had granted a raiyati settlement of the two eastern plots to Rasheswari on Chaitra 3, 1336 B.S. The finding of the trial court also was that there was nothing to disbelieve the story of the" amicable partition between the Pandits. The learned Judge also came to the conclusion that there was a mistake as to the incorporation of the C.S. plots in the Pattas, He held that though the boundaries given in the pattas exts. A. and A(1), unmistakably show that both the C.S. plots Nos. 4585 and 4586 were settled with Kalachand and Rasheswari, yet only G.S. plot No. 4585 has been mentioned therein. In other words, the learned Judge found that in the said -pattas the C.S. plots 4585 and 4586 have been taken as one plot. The learned Judge held that the Plaintiffs were not entitled to obtain a decree for ejectment. On the question of settlement of fair rent the trial court held that the existing rent was fair and there was no reason to disturb the same. As for Suit No. 43/91 the trial court decreed the same in favour of the Plaintiff.

As already mentioned, there was no appeal against the decision of the trial court in Suit No. 44/92 but the appeal related to other suit. The lower appellate court dismissed the appeals in Suit Nos. 42 and 44 but allowed the appeal in Suit No. 43''91. On the question of assessment of fair reut the lower appellate court held that the rent in respect of Suit No. 42/90 and Suit No. 44/92 were fair but that different considerations arose with regard to Suit No. 43/91. He, however, gave liberty to the Plaintiffs to bring a suit for determination of the fair and equitable rent on the subject-matter of the said suit. The Plaintiffs have filed this appeal against the said decision of the lower appellate court.

The learned advocate, appearing for the Appellants in the first place contended before us. and this part of his contention related to both the appeals, that the interests of the Respondents created by the settlements in question cannot be said to be "tenures or holdings" as mentioned in exception (a) to Sub-section (1) of Section 37 of the Bengal Land Revenue Sales Act of 1859 as altered by Section 4 of West Bengal Act VII of 1950. It would be necessary at this stage to set out the relevant provisions of the said altered Section 37 of the Bengal Land Revenue Sales Law of 1859 as altered by Section 4 of West Bengal Act VII of 1950. The said section as it stands now reads as follows:

(1) The purchaser of an entire estate in the permanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances Which may have been imposed after the time of settlement and shal be entitled to avoid and annul all tenures, holdings and leases with the following exceptions:

(a) tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent or fixed rate of rent, and

(b)(i) tenures and holdings not included in exception (a) above made, and

(ii) other leases of land whether or not lor purposes connected with agriculture or horticulture.

It is not necessary to set out at this stage the other provisions of the said section. The contention of the learned advocate was that the interests of the Respondents in question cannot be said to be "tenures or holdings" as mentioned in the exception (a) to Sub-section (1) of Section 37. In order to understand the meaning of the expression "tenures and holdings" we have to refer to the Bengal Tenancy Act of 1885. It should be mentioned that it is no body''s case before us that the lands in question held by the Respondents are ''tenures'' but the question is whether they are ''holdings''. In order to determine this question it is necessary to examine the definition of "holding" as given in the Bengal Tenancy Act. It reads as follows:

Holding means a parcel or parcels of land or an undivided share thereof, held by a raiyat or an under raiyat and forming the subject of a separate tenancy.

Thus it appears that if a ''raiyat1 holds a land or a parcel of land or an undivided share therein that land or parcel of land would be a "holding" within this definition. The question which next arises is what is meant by a ''raiyat''. Are Respondents raiyats? For that purpose, again, we have to look to the definition of raiyat as given in the Bengal Tenancy Act of 1885. Raiyat in Sub-section (2) of Section 5 of the said Act has been defined as follows:

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

There is an explanation to the said Sub-section (2) of Section 5, which is not necessary to be referred to for the present purpose. Sub-section (3) of the said section is important. It reads as follows:

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.

The whole argument of the learned advocate for the Appellants on this part of the case centred round the question as to whether or not the Respondents were ''raiyats'' as defined in the Bengal Tenancy Act. He contended that a person who holds land under one of the undivided co-sharers cannot be said to be a raiyat. In support of that contention he relied on a decision of the Judicial Committee in the case of Midnapore Zemindary Company Limited v. Naresh Narayan Roy and Ors. (1924) L.R. 51 L.A. 293 and also on the provisions of Sub-section (3) of Section 5 of the Bengal Tenancy Act, which, as I have already mentioned, lays down that a person shall not be deemed to be a raiyat unless he holds a land either immediately under a proprietor or immediately under a tenure-holder. The learned advocate laid emphasis on the fact that in the said Sub-section the word "a" is appearing before the words ''proprietor'' and ''tenure-holder'' and contended that the expression ''a proprietor'' and ''a tenure-holder'' mean all the proprietors and all the tenure-holders. Thereupon, the learned advocate contended that unless a person holds under all the proprietors or all the tenure-holders as the case may be, he cannot be said to be a raiyat. I am unable to accept this contention of the learned advocate for the Appellants.

On a true construction of Sub-section (3) of Section 5 of the Bengal Tenancy Act, 1885, I am unable to hold that unless a person holds under all the proprietors or under all the tenure-holders he cannot be a raiyat. In my opinion, what that section really means is that in order to be a raiyat a person must hold under a proprietor or under a tenure-holder and not under any other person, that is a person holding the land otherwise, than as a tenure-holder are a proprietor. A person holding under those persons can not be a raiyat. In my opinion the real significance lies not in the use of the word "a" before the words ''proprietor'' and ''tenure-holder'' but in the use of in words "proprietor" and ''tenure-holder'' themselves. The learned advocate for the Appellant drew our attention to the provisions of Section 4 of the Bengal Tenancy Act, which lays down that for the purpose of this Act the classes would be (1) tenure-holders, including under-tenure-holders, (2) raiyats, and (3) under-raiyats. He contended that there is no other interest referred to in the said section. Therefore, there can be no other interest under which a raiyat can be said to hold and he must hold it either under a proprietor or under a tenure-holder. It seems to me that the learned advocate has not taken into consideration the fact that if a person holds under an under- raiyat he would still come within the definition of the expression ''raiyat'' as given in Sub-section (2 ) of Section 5 of the said Act. It would be possible in that case to contend that because under the provisions of that Sub-section he is still a raiyat although holding under an under -raiyat. In order to obviate the possibility of any such contention that Sub-section (3) seems to have been enacted. The effect of that Sub-section is that only those persons who hold under a proprietor or under a tenure-holder can be raiyats and nobody else. It does not, to my mind, lay down that in order to be a raiyat he must hold under all the tenure-holders or under all the proprietors. It is not possible to give such a construction to the said section. The learned advocate contended that the depression "shall not be deemed" used in Sub-section (3) of Section 5 indicates that a person would not be taken to be a raiyat although he is a raiyat unless he fulfills the condition mentioned therein. The learned advocate suggested that the use of it shows that there may be other categories of persons, who under the definition in question, could be raiyats but they are not to be considered as raiyat. The short answer to this contention is to be found in what has already, been said before. I have already mentioned that strictly on the definition of ''raiyat'' as given in Sub-section (2) of Section 5 a person though not holding under a proprietor or a tenure-holder but under other persons may be a raiyat. The Sub-section lays down that such person were not to be held as raiyat and it is because after that the said Sub-section has been worded in that manner. Coming to the Privy Council decision, relied on by the learned advocate for the Appellants, it seems to me that the said decision by no means supports his contention on this point. The learned advocate relied on that part of the judgment of their Lordships of the Judicial Committee wherein their Lordships observed that "no co-sharer can, as against his co-sharers, obtain any jote "right, a right of permanent occupancy, in the lands held in "common, nor can he create by letting the lands to cultivators as "his tenants any right of occupancy of the lands in them". The learned advocate contended before us that the Privy Council in laying down that no co-sharer can create by letting land to cultivators any right of occupancy laid down that no co-sharer can let out the lands to any cultivator as his tenants. I am unable to accept that contention of the learned advocate. What their Lordships laid down is that a co-sharer cannot create by letting the land to the cultivator any occupancy right of the land in them. The learned advocate had to admit that in saying that ''a person has acquired a right to hold land'' does not mean that the person has acquired the ''right of occupancy of the land ''in question''. In other words, a person may be a raiyat without being an occupancy raiyat. The occupancy right enures to a raiyat under certain circumstances. Therefore, it is clear to my mind that when their Lordships said that a co-sharer cannot create by letting land to cultivators any right of occupancy their Lordships did not mean to lay down that the co-sharers had no right to let out the land to the cultivators as tenants. The said case decided by the Privy Council does not touch the present question and in any event is not an authority for the proposition urged before us by the learned advocate for the Appellant.

The learned advocate for the Appellant further contended before us that in view of the provisions of Section 188 of the Bengal Tenancy Act, which, inter alia, provides that where two or more persons are co-sharer landlords, anything which the landlord is under this Act required or authorised to do must be done either by both or all those persons acting together, a tenancy if it has to be created must be created by all the landlords together and therefore the present tenancy which is created by some of the co-sharers is not a valid tenancy under the provisions of the Bengal Tenancy Act. It seems to me that the learned advocate did not pay sufficient attention to the words "anything which "the landlord is under this Act required or authorised to do" appearing in a said section. The things which have to be done by all the co-sharer landlords, as laid down in Section 188 of the Bengal Tenancy Act, must be things required or authorised under the Bengal Tenancy Act. The creation of a tenancy is the creature of the Contract Act. The Bengal Tenancy Act simply defines and regulates the rights and obligations of the landlords and the tenants, but the authority for the creation of that right is not the Bengal Tenancy Act but the Indian Contract Act. In my view, there is no substance in this contention.

I now come to the contentions of the learned advocate for the Appellant in respect of each of the appeals separately. With reference to the suit No. 42/90 the contention of the learned advocate for the Appellant is that the suit in question was for ejectment of the Respondent Rampada from the c. s. plot No. 4586. The lease which is set up as a defence to the said action does not relate to the said plot No. 4586 but relates to plot No. 4585. Therefore, even if the Defendant may resist eviction in respect of plot No. 4585 by virtue of the said lease, he has no such defence in respect of plot No. 4586. The position on this matter, in my opinion, has been made amply clear by the judgment of the trial court. The trial court on the materials before it came to the clear conclusion that when these settlements to the Defendants, meaning the settlements in Suits Nos. 42/90 and 44/92 were made by exts. A and A(i), the c.s. operations had just been completed or they were nearing completion. So there has cropped up some mistake as to the incorporation of C.S. plots in the pattas. Though the boundaries given in the pattas, exts. A and A(l) unmistakably show that both the C.S. Plot Nos. 4585 and 4586 were settled with Kalachand and Rasheswari, yet only C.S. Plot No. 5485 lias been mentioned. But it appears, however, that both the C.S. Plots Nos. 4585 and 4586 have been taken as one plot No. 4585. This he said is clear from the boundaries liven in Patta ext. A, which shows that not only the remaining portion of C.S. Plot No. 4585 but also the entire C.S. Plot No. 4586 was settled to Rasheswari. If only the remaining portions of C.S. Plot No. 4585 was meant to be settled then the northern boundary would have been C.S. dag No. 4586 and not Nanitosh''s C.S. Plot No. 4587 as shown in the patta, ext. A. The conclusion at which the learned Judge finally reached was that dag No. 4586 was within the said settlement. I see no reason for reversing the said finding which has been accepted by the lower appellate court. It is a finding on fact and cannot be disturbed in second appeals. This contention of the learned advocate must, therefore, fail.

The remaining contention of the learned advocate for the Appellant relates to Suit No. 43/91 of 1948/1947. I have already said that the plots involved in that suit are plots Nos. 6848 and 6525. There is no Patta or Kabuliyat in respect of the lease in favour of the Respondents of these plots. The learned advocate for the Appellant contended before us that the lower appellate court was wrong in holding that the lands covered by the said suit had been settled with Rampada. He argued before us that there was no evidence on which the learned Judge could come to that conclusion. I am unable to accept this contention of the learned advocate as well. The lower appellate court held that although there was no patta or Kabuliyat in respect of this lease. Some Dalhilas which have been proved in the case go to show that the Defendants got settlement from the entire body of proprietors and that there was no sufficient reason to disbelieve the same. The learned Judge further observed that one of the co-sharer landlords Prangobinda had deposed in favour of the Defendants that the suit land in question had been settled with Rampada 18 or 19 years ago. I see absolutely no reason for disturbing the said finding of the lower appellate court and I should again observe that these are questions of the facts and cannot be gone into in second appeals.

The last contention of the learned advocate for the Appellant was that his alternative prayer in all the said suits was that a fair rent be settled by the court. With regard to Suits Nos. 42/90 and 44/92 the lower appellate courts has come to the conclusion that the rate of rent was fair. But so far as Suit No. 43/91 was concerned although it held that different considerations will arise with regard to the same still it gave leave to the Plaintiffs to bring a suit for determination of fair and reasonable rent in the said suit. The contention of the learned advocate was that the Judge was wrong in directing the Plaintiffs to bring a fresh suit and that he should have decided the question himself in this suit. It appears that there was an obvious difficulty in the way of the learned Judge in determining this question in this suit. As I have mentioned, the subject-matter of this suit related to plots Nos. 6848 and 6525 but according to the Defendants the plot No. 6525 along with another plot being plot No. 6434 formed an annual rental of Rs. 2. The plot No. 6434 was not the subject matter of the present suit. In these circumstances it was not possible for the learned Judge to determine the said question in the suit.

The result, therefore, is that all the contentions of the learned advocate for the Appellants fail and both the appeals are dismissed with costs. There will be one set of hearing fee for both the appeals.

N.K. Sen, J.

I agree.