Bibi Qoraisha and Another vs Bandhu Mahton and Others

B.N. Jha, J.—Plaintiffs-appellants filed Title Suit No. 93 of 1953 on the 18th August, 1953 which gives rise to Letters Patent No. 135 of 1959, for recovery of possession of the lands mentioned in the plaint together with mesne profits with effect from the date of the expiry of the term till the date of recovery of possession. They also filed Money Suit No. 177 of 1953, which gives rise to Letters Patent No. 134 of 1959 for recovery of rent from 1358 F.S. to 1360 F.S., at the annual rental of Rs. 450/- after making adjustment of Pesgi money of Rs. 450. The trial court decreed the two suits of the plaintiffs as prayed for, but granted a decree for interest at a lesser rate of six per cent per annum in the Money Suit. On appeal the lower appellate court affirmed the decrees of the trial court. The contesting defendants filed two Second Appeals in the High Court, namely, Second Appeal Nos, 367 and 368 of 1957 against the decisions of the court below passed in the two appeals affirming the decisions of the trial court. The learned single Judge who heard the appeals allowed Second Appeal No. 367 of 1957 and dismissed the plaintiffs suit for recovery of possession. So far as Second Appeal No. 368 of 1957 is concerned, the decree for arrears of rent was modified to this extent that the suit was decreed only at the rate of Rs. 150/- per annum instead of Rs. 450/-, as decreed by the courts below. The learned single Judge, however, granted leave to appeal under Clause 10 of the Letters Patent. Hence, the plaintiffs have preferred the two Letters Patent Appeals.

The plaintiffs were 16 Annas Malik of Tauzi No. 16582 in Mauza Rampur Katahri in the district of Patna. They granted a lease of their entire interest in the Tauzi to one Lakshuman Nonia of village Ganichak from 1340 F. S. to 1350 F.S. at the annual rental of Rs. 120. On the termination of the aforesaid Thika the plaintiffs came in possession of the Thika property. Subsequently, the defendant took Thika settlement of, the aforesaid property on the 25th January, 1953 at an annual rental of Rs. 150/- per year for the period commencing from 1351,F.S. to 1356 F.S. After the expiry of. the Thika lease the defendants gave up possession of the lease-hold property, but defendant No. 1 again expressed his desire to take in Thika the same Tauzi and the plaintiffs agreed to it and in pursuance thereof they granted a Thika lease to the defendant, Bandhu Mahaton at an annual rental of Rs. 450/- for a period commencing from 1356 F.S. to 1360 F.S. The lease was executed and registered on the 29th June, 1948 and the defendant, Bandhu Mahaton also deposited Rs. 450/- as Zerpeshgi money. The defendant paid rent for 1356 F.S. and 1357 F.S. at; the rate of Rs. 450/-, but did not pay thereafter. Hence, the plaintiffs filed the Money Suit for recovery of arrears of rent on the expiry of the Thika. According to the case of the plaintiffs, they came in possession of the lease-hold property on the expiry of the period and cultivated a portion of the land, but the defendants began to interfere in their possession and ultimately a proceeding u/s 144 of the Criminal Procedure Code was started between the parties, which was decided against the plaintiffs on the 10th August, 1953. Hence, they filed the two suits; one for recovery of arrears of rent.

The defendants resisted the suits of the plaintiffs on the grounds inter alia that they were cultivating the lands in question as adhiyadar from the year 1342 F.S. With effect from 1351 F.S., the plaintiffs commuted the adhi rent to a nagdi annual rental of Rs. 150/-. Patta and Kabuliat were executed, but the contents of the same were not read over to them. Subsequently the plaintiffs also got another lease executed at the rate of Rs. 450/-, and at that time also the contents of the documents were never intimated to them. The defendants acquired occupancy right in the land and as such they could not be ejected from the lands in question. In the Money Suit, the defendants put forward two pleas; firstly they pleaded that there was nothing due. In the alternative they pleaded that they being occupancy raiyats in respect of the suit land, the landlords had no right to enhance rent to Rs. 450/-, and at best they were entitled to rent at the rate of Rs. 150/-.

Both the Title Suit and the Money Suit were tried together as common question of law and fact were involved in the two suits, On a careful consideration of the facts, circumstances and evidence on the record, the Munsif disbelieved the case of the defendants and decreed the two suits of the plaintiffs as claimed by them, but in the Money Suit, he only granted a decree for interests on the arrears of rent at six per cent per annum.

The contesting defendants filed two appeals against the judgments and decrees of the learned Munsif which were heard together and one judgment was passed in both the appeals. Before the lower appellate court, two points were canvassed. The appellants contended that the proprietary interest of the plaintiffs vested in the State of Bihar on the 1st January, 1956 under the Land Reforms Act and as such they were not entitled to get a decree for possession. Secondly in the alternative they contended that the settlement with the defendants was a raiyati settlement and they acquired occupancy right in the land and as such they could not be ejected. They also submitted that they took the lease at an annual rental of Rs. 120/-, and the enhancement of rent to Rs. 450/- was illegal and the suit could not be decreed at the rate of Rs. 450/-. The lower appellate court negatived the contentions of the defendants-appellants and dismissed the appeals of the defendants affirming the decision of the trial court in the two suits.

The defendants filed two Second Appeals in the High Court, being Second Appeal Nos. 367 and 368 of 1957, which were placed for hearing before a single judge of this Court. It was contended on behalf of the defendants appellants that the settlement of the lands in question was in fact, a raiyati settlement of the lands for the purpose of cultivation and as such the defendants acquired occupancy right in the suit lands, and they could not be ejected from the same. Consequently it was further contended that the fixation of annual Jama at Rs. 450/- was illegal as it contravened the provisions of Section 29 of the Bihar Tenancy Act and that at best the plaintiffs were only entitled to a decree for rent at the rate of Rs. 150/- only. The contentions raised by the appellants were accepted by the learned single Judge who allowed Second Appeal No. 367 of 1957 and dismissed the suit of the plaintiffs for possession and mesne profits. Second Appeal No. 368 of 1957 was allowed in part to the extent that instead of a decree for rent at the rate of Rs. 450/-, a modified decree, at the rate of Rs. 150/- per annum was allowed to be passed for the years in suit. As stated above leave under Clause 10 of the Letters Patent was granted and in pursuance thereof the plaintiffs have filed the two Letters Patent Appeals.

The two appeals have been heard together and one common judgment will govern them. Both parties in support of their contentions based their claim on the terms of the lease (Ext. 5/b) executed by both the parties on the 29th June, 1948. According to the case of the appellants, their milkiat interest was let out in Thika for a term of five years; whereas according to the case of the defendants-respondents, raiyati settlement was made by the said document for the purpose of cultivation of the land. In order to appreciate the points raised by the parties, it is necessary to quote some relevant portions of the document. It recites as follows:

Name of executants: Abdul Hamid.... (1) Aam Mokhtar on behalf of ''Mosst, Bibi Qoraisha and Mosst. Bibi Kolsum, ...1st party. (2) Bandhu Mahto...2nd Party. Name of claimant:- The parties themselves. Nature of document:- Thika Patta for a term of five years with effect from 1356 F.S. to feth 1360 F.S. Amount of Peshgi money bearing no interest. Amount of uniform annual rent:- Rs. 450/-. Details of the leasehold property:- The entire 16 annas takhta formed by collectorate partition situate in mauza Rampur Katahri Tauzi No. 16582, Sadar Jama Rs. 12/11/- Constituting Milkiat interest together with khudkasht and ba-kashf lands, principal with dependency full details whereof have been given below in this deed, is owned and possessed by Bibi Qoraisha and Bibi Kolsum proprietors, over which the said proprietors have been in possession and occupation up to this time.

Terms of the lease:

The entire 16 annas Takhta, formed by Collectorate partition, situate in anauza Rampur Katahri, pergana Bihar, district, Patna, Tauzi No. 16582, Sadar Jama payable Rs. 12/11/-constituting milkiat interest together with Khudkasht and Bakasht lands, principal with dependencies; (full details whereof have been given in column No. 6, is owned and possessed by the aforesaid proprietors who have been in possession and occupation thereof without the copartnership of and interference by any body and have been appropriating the produce and income thereof. I, the executant 1st party wanted to let but the said property in thika, hence, I told the 2nd party, who has been a thikedar from before to take the property in tkika, the executant 2nd party accepted it and the annual jama etc. as settled between the parties. Hence, I the executant, have in a sound state of my body and mind in enjoyment of my proper senses and legal rights, without under pressure and coercion and inducement and temptation on the part of any body of my own accord and free will, let out (the aforesaid property) in thika together with mal-wajahat, Sair wajahat, all habubs Jalkar, bankar, ahar, pokhar, rights of irrigation, incidental rights appertaining to Zamindari, toddy palm and date palm trees producing juice and other fruit bearing and non-fruit bearing trees, salt, sugar Kothi, bamboo clumps, Nadi, nala new and old parti lands brick-built and mud brick walls with the exception of those things which are forbidden by law together with all the rights and appertenances to the executant 2nd party on a fixed annual jama of Rs. 450/- (Rupees four hundred and fifty) with effect from 1356 F. S. to Jeth 1360 F. S. for a period of five years on taking Rs. 450/- (Rupees four hundred and fifty) as Peshgi money (money in advance) and bearing no interest. On receipt of the whole and entire peshgi money bearing no interest I have put the said Thikedar in possession and occupation of the leasehold property till the expiry of the terms in my place. It is required that the said 2nd party should enter into and continue to remain in possession and occupation of the leasehold property till the expiry of the term, cultivate the Khudkasht and bakasht lands and appropriate the produce and income thereof ....The 2nd party shall not execute a thika, katkana or make any settlement in any way in writing or orally in favour of anybody nor shall be allow a span of land in his possession to go in possession of others...." From the perusal of the document there is no ambiguity so far the terms of the document are concerned. It is well known rule of construction of a document that when the terms of the document are clear and unambiguous, the intention of the parties can be ascertained from the document itself. No extraneous evidence is required to be given in order to find out the intention of the parties. The document is described as Thika-patta for a term of five years. Amount of Peshgi money is also given as Rs. 450/-. The lease-hold property is described as the entire 16 annas takhta formed by collectorate partition".... Tauzi No. 16582 Sadar Rs. 12/11/- constituting milkiat interest together with Kasht and Bakasht lands principal with dependencies, i.e., everything within the milkiat interest was let out in Thika together with mal-wajahat, Sair wajahat all habubs jalkar, bankar, pokhar, right of irrigation, incidental rights appertaining to Zamindari toddy palm and date palm trees producing juice and other fruit bearing trees, salt, sugar kothi, bamboo clumps, Nadi nala new and old parti lands brick built and mud brick walls with the exception of those things which are forbidden by law together with all the rights and appertenances to the executant 2nd party on a fixed annual jama of Rs. 450." The aforesaid terms arc clear and apparent that the entire milkiat: interest was given in thika by the plaintiffs to Bandhu Maha: ton. It is admitted by the parties that before the execution of the lease (Ext. 5/b) a similar lease known as Thika Patta (Ext. 5/a) had been executed by the plaintiffs and Bandhu Mahaton, whereby the same property was given in Thika to Bandhu Mahaton for a period of five years. Bandhu Mahaton made an endorsement on the back of the last page of the document in the following terms:

As the term of the, thika has expired, I have given the lease.-hold property in Sir possession (to the proprietors) and the peshgi money of Rs. 150/- has been set off against the rent, for 1355 F.S. I have given the, lease-hold property in possession and occupation of the proprietors.

Sd.-Bandhu Mahato.

The learned single Judge while holding that the document shows that raiyati settlement was made by it, was greatly influenced by following terms of the document which reads as follows:

It is required that the said 2nd party should enter into and continue to remain in possession and occupation of the lease-hold property till the expiry of the term, cultivate the Khudkasht and bakasht lands and appropriate the produce and income thereof .... The 2nd party was not to execute in any way in writing or orally in favour of any-body nor was he allowed a span of land in his possession to go in possession of others.

The learned single judge construed the document (Ext. 5/b) as a raiyati settlement on the basis of the decision of this Court in Suraj Mohan Thakur v. Ganesh Prasad Mandar AIR 1938 Patna 235, where the terms of the settlement were as follows:

I have taken the mustajiri settlement of the entire mauza Azampur .... I, the executant, shall cultivate the lands of the said Village under cultivation and shall not make any sort of settlement, whether nakdi or bhaoli with any other tenant and shall not allow the lands to remain fallow.

In that case tenancy was admitted. The only question was whether the document conveyed a raiyati interest or that of tenure-holder. Their Lordships on the consideration of the document held that it was a raiyati settlement and as such the tenants acquired occupancy right by remaining in possession for more than 12 years and could not be ejected. It is not safe to construe I document with reference to the : terms of another document. The terms of the entire document have got to be examined. In the present case 16 Annas Milkiat interest of the plaintiffs including all dependencies of the Zamindari interest was given in Thika for five years. The stipulation in the document that Bandhu Mahaton would cultivate the land himself and would not make any settlement of or would not allow any other person to cultivate the land was made in order to protect the interest of the lessors so that the bakasht and khud-kasht lands might be left intact till after the expiry of the lease. If such stipulation would not have been there, it was just possible that Bandhu Mahaton might have settled the bakasht and khud-kasht lands with his own men or with others to defeat the bakasht character of the land and deprive the plaintiffs of those lands, because in that case the settle from Bandhu Mahaton might have acquired occupancy right in the land and the settlement might have been binding on the plaintiffs. Therefore, the above stipulation in the present case would not determine the character of the settlement. There is further stipulation in the document which runs as follows:

When in Jeth 1360 F.S. the due date of re-payment expires, the whole and entire aforesaid peshgi money shall be set off against the aforesaid annual rent and the thika shall stand cancelled and the peshgi money shall be set off against this rent and the lease-hold property shall come in Sir possession of me, the executant 1st party.

Bandhu Mahton was prohibited by the terms of the document itself that he would not make any raiyati settlement of the bakasht lands under the Tauzi and on the expiration of the lease, the entire property would come in khas possession of the plaintiffs. There is no doubt in my mind from reading the document as a whole that the document does not purport to have made a raiyati settlement of the bakasht and khud-kasht lands with the defendant, Bandhu Mahton. It was purely a Thika lease, which gave right to the plaintiffs to take khas possession of the land on the expiry of the terms of the lease. The possession of the defendants thereafter became wrongful and they were liable to pay mesne profits to the plaintiffs. In that view of the matter the present case does not attract the applications of the provisions of Section 29 of the Bihar Tenancy Act, and the annual rental of Rs. 450/-could not be regarded as illegal. The plaintiffs are entitled to recover from the defendants the arrears of rent at that rate for the years in suit.

So far as the recovery of possession is concerned, there is another obstacle in the way of the plaintiffs. Their proprietary interest in the Tauzi No. 16582 vested in the State of Bihar on the 1st of January, 1956. At that time the plaintiffs were admittedly not in khas possession of the land. According to the case of the plaintiffs themselves, they came in possession, but subsequently the defendants interfered in their possession. There was a proceeding u/s 144 of the Criminal Procedure Code between the parties, which was decided against the plaintiffs on the 10th August, 1953. Thereafter on the 18th August, 1953, they filed the present suit for possession with mesne profits till the date of recovery of possession. Under such circumstances, it is clear that the plaintiffs were not in khas possession of the lands in suit. Mr. L.K. Choudhary learned Counsel for the appellants submitted that as the lands were held by the temporary lessee of the plaintiffs, their interest to hold the land in khas possession after the expiry of the lease is saved under Clause (b) of Section 6(1) of the Bihar Land Reforms Act. It is difficult for me to accept this contention. Section 6 provides as follows:

Section 6. Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights:-(1) On and from the date of vesting, all lands used for agricultural or horticultural purposes, which were in khas possession of (2) (an intermediary) on the date of such vesting, including:....

(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock....

Sub-clause (b) lays down that the land must be held in the direct possession of a temporary lessee (2) cultivated by himself with his own servants or hired labour. There fore at the time of the vesting the lands must be in khas possession of a temporary lessee i.e. the temporary lease must be subsisting at the time of the vesting. This clause only gives effect to the general principle that the possession of the lessee is the possession of the lessor and if the land is to revert back to the lessor after the expiry of the period of the term, he should not suffer on account of the Act, though he may not be in direct possession of the same. In the present case the temporary lease had already expired long before the plaintiffs had filed a suit for recovery of possession and mesne profits on the ground that though the period of Thika lease had expired, but the lessee was not giving up possession and was in wrongful possession. In such circumstances it could not be said that even after the vesting of the estate, the plaintiffs were still entitled to retain possession of the lands which were in wrongful possession of others.

Mr. L.K. Choudhary further submitted that the plaintiffs'' suit for possession was decreed by the trial court on the 11th March, 1955 and the plaintiffs Estate vested in the State of Bihar thereafter on the 1st of January, 1955. The rights of the parties have got to be determined at the time of the institution of the suit and subsequent vesting will not affect their interest. This aspect of the case came for consideration before this Court in Ram Ran Bijai Singh and Ors. v. Behari Singh F.A. No. 42 of 1948 decided on 3rd September, 1957. In that case the mortgagors brought the suit for recovery of possession and mesne profits after the redemption of the mortgage. The suit was decreed on the 10th October, 1947. Thereafter the contesting defendants filed the aforesaid first appeal in this Court. During the pendency of the appeal, plaintiffs'' Estate vested in the State of Bihar on the 1st January, 1955. The contention of the defendants was that after the vesting of the Estate of the plaintiffs on the 1st of January, 1955 they had no right to get khas possession of the lands; whereas the contention of the plaintiffs was that the suit had already been decreed before the vesting of the Estate and the rights under the decree were not effected. This Court negatived the contention and passed a decree in the following terms:

The plaintiffs shall be entitled to a decree for a declaration of their title to the effect that the lands in suit are the proprietors'' private lands belonging to the plaintiffs and that they are entitled to mesne profits for the years claimed and also up to the 31st December, 1954, the plaintiffs estate having vested in the State of Bihar on 1-1-55, and the decree for possession is set aside. The amount of mesne profits shall be ascertained in a subsequent proceeding.

The plaintiffs took the matter to the Supreme Court and the decree of this Court was affirmed by the Supreme Court also in Ram Ran Bijai Singh v. Behari Singh 1963 B.L.J.R. 868. In that view of the matter, the plaintiffs are not entitled to a decree for khas possession of the lands in suit. The decree in the present suit should also be passed as was passed in Ram Ran Bijai Singh''s case 1963 BLJR 868.

In the result the Letters Patent Appeal No. 134 of 1959 is allowed. The judgment and the decree passed by the single Judge in Second Appeal No. 368 of 1957 is set aside and the judgment and the decree of the lower appellate court in Money Appeal No. 37/10 of 1955 is restored. The Letters Patent Appeal No. 135 of 1959 is allowed in part. The judgment and the decree passed by the single Judge in Second Appeal No. 367 of 1957 is modified to this extent that the suit of the plaintiffs for possession is dismissed, but they are entitled to mesne profits for the period commencing from the 10th August, 1953 to the 31st December, 1955. The amount of mesne profits shall be ascertained in a separate proceeding. The plaintiffs-appellants will also be entitled to costs through out in both the appeals. However there will be only one set of hearing fee.

R.L. Narasimham, C.J.

I agree.