Bihari Raut vs Gaurhari Singh

Glover, J.—There is no ground for interference with the lower appellate Court''s decision in this case. The plaintiff sued under clause 6, section 24, Act X of 1859, to recover possession of 2 bigas 6 katas and 10 chittaks of land, from which he alleged himself to have been illegally dispossessed by the trustee of a religious endowment. He claimed to have held this land from the time of the permanent settlement at a fixed rate, and his cause of action was the letting of the land by the trustee to a third party. The defence was that the land was the nij jote of the temple; that it had never been let to the plaintiff, as alleged by him, from the date of the permanent settlement, although it had occasionally been let for short periods to the plaintiff''s father; that no agreement had ever been come to as to a lease; that the plaintiff at last left the land uncultivated, and then the defendant leased it to a third party.

The first Court dismissed the plaintiff''s claim, considering it not proved that he had been holding this land from the time of the permanent settlement at fixed rates. The Court of Appeal took up the question as to whether plaintiff had or had not a right of occupancy, and finding on the evidence that he had, gave him a decree to recover possession of the land.

The ground is, that as the disputed land is the nij jote land of the temple, no cultivator of that land can obtain a right of occupancy with reference to the terms of section 6, Act X of 1859.

This appears to be a mistake. Although that section does exclude khamar, nij jote, and seer lands belonging to the proprietor of an estate, it only does so when such lands have been let by him on a lease for a term of years, or year by year. In this case there is no evidence to show that the land was let to the defendant for a special term, or that he was only a yearly tenant of the same. There is nothing per se in the fact of the land being nij jote, which prevents a cultivator from acquiring rights of occupancy in it; and in this case it has been found by the Judge on the evidence, as a fact, that the plaintiff has been for more than twelve years in possession of the land paying rent to the trustee of the endowment, and that be has therefore acquired a right of occupancy. There appears therefore no ground for interfering with this decision. The special appeal must be dismissed with costs.

Mitter, J.

I concur.