Brijnandan Singh and Babu Jadunandan Singh vs Maharaja Sir Rameshwar Singh Bahadur

Roe, J.—These two appeals arise from two suits brought by two brothers, the sons of Ganesh Dutt Singh, in respect of land situated in village Ramnagar and how in the possession of the Maharaja of Darbhanga as proprietor of Pandowl factory. The case of the plaintiffs was that they had leased 170 bighas of land, admitted to be zerait land for the years 1308 to 1317 to Mr. Faulkner, the Maharaja''s manager, and that the present manager Mr. Henry having failed to make fresh arrangements, the Maharaja is now a trespasser and liable to eviction. The defence was that Pandwol factory had prior to its purchase by the Maharaja acquired occupancy rights in these lands and that the transfer of these occupancy rights to the Maharaja had been completed by the plaintiffs'' recognition of the tenancy by the acceptance of a kabuliyat of 1308. The learned Subordinate Judge found as a fact that the land is not proved to be zerait land. He held that the defendant''s tenancy commenced in 1308; that the interest then given to him was a raiyat''s interest; that the defendant was a non-occupancy raiyat and could not be ejected. The defendant had also urged that Faulkner had no right to pledge the Maharaja to give up the land in 13.7 and that the admission made by him that the lands were zerait lands was not binding upon the Maharaja. This issue was decided against the defendant. The defendant also urged that they had not been given a fair opportunity of executing a fresh kabuliyat, that they Were perfectly willing to do so and that, therefore, under the terms of the lease to Faulkner they were entitled to renew the lease and remain in possession. On this point the learned Judge found in the defendant''s favour. On these findings the suits were dismissed.

The question to which we propose first to devote our attention is whether these lands are zerait lands or not. The plaintiff has called twenty-four witnesses to prove that the lands were prior to their acquisition by the factory in 1879 in the direct possession of the plaintiff''s father Ganesh Dutt Singh. It is sufficient to read that evidence to realise that it is typical evidence given by raiyats deposing in favour of their maliks. The first witness says that he knows the land to have been under cultivation by the plaintiff''s ploughs, and in cross-examination admits that he has never seen them at all. Witness after witness makes some damaging admission, and in each case an attempt is made to smooth these admissions away either later in the day or on a later day. For instance the 4th witness limited his knowledge of the plaintiff''s cultivation to four or five years, which was of course, insufficient for the purposes of Section 120. The 7th witness has only seen two bighas out of the whole. The 6th witness says that the lands lay on all sides of the village, which is inconsistent with the statement of the 5th witness that it lay in two plots one of 100 bighas and the other of 17 bighas. It is not necessary to go further into details. It is sufficient to say that the evidence generally is conflicting and unreliable. It is, moreover, as, the Commissioners'' report shows in conflict with the thakbast papers of 1848. These Commissioners have been able to locate the majority of the lands in suit as specified plots stated is the thakbast survey papers to have been is the possession of John Gale, in 1848, We hold that the plaintiff has failed to show that for twelve years prior to 1883 the land was cultivated by his own ploughs and seeing that his own evidence is that it was cultivated by the ploughs of the factory from the year 1879 to 1883, we fail to see why it was necessary to bring in evidence at all to show what happened to them prior to 1879. The only ground upon which the plaintiff could succeed in his plea that the lands were zerait lands would be that by village usage the lands have always been known as zerait. There is no definite evidence at all in the mouth of any of the witnesses to this effect. We are asked, however, to say that they have always been called zerait lands in all the plaintiff''s documents of title and, therefore, they must be regarded as zerait lands by village usage. With this suggestion we are not in sympathy. It is our experience that every zemindar throughout Bihar on leasing land temporarily in his khas possession always describes it as khudkasht. It is idle to suggest that a description contained in documents such as this would be sufficient evidence to establish village usage. We agree, therefore, with the learned Subordinate Judge that these lands are not zerait lands.

With regard to the question of the status of the defendant we have to examine, firstly, the status of the Gales and secondly, the effect of Gale''s status upon the Maharaja''s status in giving evidence upon this point the plaintiff attempted to make out a case that the inception of the tenancy must be dated 1879. As indicated in our decision upon the question whether the lands are zerait lands or not, we are of opinion that so far as the Gales were concerned, tenancy in the greater part of the lands in suit commenced from before the year 1848 and probably from 1828, when the factory was started upon the lands for which the mukarrari lease of that year was given. The lands held in 1848 by the factory, in excess of the land covered by the mokarrari, consisted of 125 bighas for which the defendants have been classed as raiyts in the survey papers, and of about 150 bighas which form part of the present 170 bighas. The Survey Record shows that at the time of the survey the factory accepted the status of hikadars in these 170 bighas. The lands were recorded as bakasht lands. The area is more than 150 bighas. There is, therefore, a doable presumption upon the defendant to show that at the time when he took the lands it was Gale''s intention to cultivate them by his own plough. We are asked to presume that that must have been his intention because he was, cultivating them by his own ploughs in 1848. We are not prepared to accept this. It may well be that there were tenants on the land in 1828 who had by 1848 been turned out. If there were tenants on the land in 1848 the object of the lease was, we hope, that the factory should take rent from the tenants and observe their rights, not destroy them. To rebut the presumption arising from the Record of Rights, the defendants were required to show that when the Gales first went on to the land there were no tenants on it. We note that in the thakbast papers, the zemindars are recorded as in possession of 160 bighas of zerait lands in addition to the lands held by the factory. If the factory land was in 1828 also free of tenants, no less than 470 bighas of the village were free of tenants. The whole village is only a thousand bighas in extent. It seems to us extremely improbable that 470 bighas of these should have been at the direct disposal of the malik. We are of opinion, therefore, that the presumption arising from the area and from the settlement record that the tenancy of the Gales was that of tenure-holders has not been rebutted. The Gales were tenure-holders. Their last lease expired in 1307. The Maharaja purchased sometime in 1901, The finally published Record of Rights dated the 16th September shows him to be then in possession of the factory, and the lands in suit to be in his possession, bakasht thikadar.

The argument set forth in the written statement was that the Gales had occupancy rights, and that the Maharaja acquired these rights. Even if the Gales had had occupancy rights they would not have passed to the Maharaja by virtue of his purchase of the factory, as is clear from the decision of the Judicial Committee in the case of Chandrabati Koeri v. Harrington 18 C. 349 : 18 I.A. 27 : 15 Ind. Jur. 153 : 5 P.C.J. 681 : 9 Ind. Dec 233 (P. C), accepting the previous case law as set out in Laidley v. Gour Gobind Sarkar 11 C. 501 : 5 Ind. Dec. 1093. Mr. Pugh upon this point bases his case upon the fact that the Maharaja''s tenancy was a new tenancy altogether independent of that of the Gales. The lease is in different terms. For instance, whereas the Gales had power to let out the lands covered by the lease provided they did not let them at less than a specified rate, the Maharaja had no power to sub-let the lands at all. When the Maharaja took over the factory, the Gales'' tenure had just expired. As far as we know, they were not holding over. When they went out they left nothing tangible in the way of occupancy rights or even tenancy rights. The possession of the Maharaja from the date of his purchase up to the date of his recognition by the plaintiffs was that of a trespasser, Recognition took the form of the registered kabuliyat of 1308. In that kabuliyat there were special provisions precluding the lessee from sub-leasing the land at all. There were no tenants upon the land. Clearly the intention of both parties to the lease of 1308 was that the Maharaja should cultivate the land by his own ploughs. We are of opinion that he entered upon the land as a raiyat, His status on the date of the expiry of the lease of 1308 was that of a non-occupancy raiyat. The plea of limitation is a sufficient answer to the case. The lease by which the land was let to the plaintiffs as a raiyat for a term of years expired in 1317 and no suit was brought within six months of the expiry of the lease. On this point the plaintiff''s suit must fail.

We are asked, however, to come to findings of fact with regard to two other points The first is whether Faulkner had power to execute this lease and whether the Maharaja is bound by the admissions in it. If it is suggested that Faulkner had power to bind the Maharaja to conditions repugnant to the Bengal Tenancy Act, he certainly could not do so, whether he had the power to take the lease or not. The Maharaja is as much protected by that Act as a raiyat holding one bigha of land. If it is suggested that his admission that the lands are khudkasht lands binds the Maharaja we have only to say that such an admission has been always held not to bind the lessee though it may be evidence of the fact that the lands were khudkasht We see no great reason to decide what Faulkner''s powers may have been. It is, however, brought to our notice that Henry in making arrangements to renew the lease in 1910 had offered to do so on precisely the same terms as before. We presume that both Henry and Faulkner had the ordinary powers of Managers of agricultural businesses to make suitable and reasonable arrangements for the leasing of lands required for agriculture. Until the contrary is proved, we would presume that Faulkner had power to accept the lease from the plaintiffs on reasonable conditions.

The last point that was considered by the Judge was whether the defendant''s suit was premature on the ground that the defendants having an option to renew were not given a fair chance of doing so. All that the learned Subordinate Judge says on this point is: "There is clear evidence that there was an offer on the part of the defendants first party to renew the lease and it was the plaintiffs who threw obstacles in the way of their lease: I think the defendants could not be blamed for non-execution of their lease." We have considered the evidence upon this point. We find that Henry offered to execute a fresh lease on 21st May 1910. In spite of the plaintiffs'' protest on the 27th November 1911 against the delay in carrying out this promise nothing had been done up to the filing of the suit on the 9th of April 1913. The difficulty appears to have been that while the plaintiffs were anxious to have a consolidated kabuliyat both for the 170 bighas covered by the old lease and the 125 bighas covered by the raiyati khatian of the factory, the defendants were unwilling to risk their assured status as raiyats in 125 bighas by mixing them up with lands in which their status was not assured.

There is a time limit for an option to renew. The plaintiffs'' protest against the defendant''s delay was fully justified. We do not understand Faulkner''s kabuliyat to bind the plaintiffs to accept a fresh kabuliyat on precisely the same terms as the old kabuliyat. We are of opinion that the failure of the defendant to come to terms within three years of the expiry of the lease -amounted to failure to avail himself of the option to renew. However on the findings on the main issues involved the appeal is dismissed with costs.

Jwala Prasad, J.

I agree to the orders proposed.