Bux Jagadamba Prasad vs Mahananda Ojha

Mohammad Noor, J.—This appeal arises out of a suit instituted by the plaintiff-appellant under S. 16 (Act 8 of 1865 BC), read with S. 208, Chota Nagpur Tenancy Act, to annul an incumbrance. Lat Bagiari comprising of seven villages was a digwari tenure under the Ramgarh estate and was sold for arrears of rent and cess under S. 208, Chota Nagpur Tenancy Act. Rai Bahadur Ram Narayan Lal purchased it and then sold it to one Durga Prasad Bhagat, who in his turn sold half of it to Gajadhar Lal Sah and Nand kishore Prasad. Later on, the plaintiff acquired the entire Lat from Durga Prasad Bhagat, Gajadhar Lal Sah and Nandkishore Prasad. One of the villages in the Lat was Tilaiya, which was held by one Bomali Singh as khorposhdar. He granted an instimrari mokarrari of 4.74 acres of land to the defendants under a deed, dated 20th March 1918, on taking Rs. 580 as salami. The plaintiff instituted the present suit for the avoidance of this istimrari mokarrari. The defence was that the right created by the deed was an occupancy right and protected under S. 208, Chota Nagpur Tenancy Act.

The first Court held that the defendants were tenure-holders and therefore it gave the plaintiff a decree with mesne profits. On appeal the learned Subordinate Judge has held that the defendants were occupancy raiyats and therefore not liable to be ejected. The plaintiff has preferred this second appeal. The only question involved is the status of the defendants, namely, whether they were tenure-holders or raiyats.

Though the learned Subordinate Judge has laid down the law correctly, he has in my opinion wrongly applied it. Relying upon some decisions, all of which need not be discussed he has rightly held that the question whether a tenant is a raiyat or a tenure-holder ultimately depends upon the question of facts and the Court must look to the attendant circumstances and that no importance can be attached to the mere form of the kabuliat or to the use in it of the word "cultivator." He has referred to an observation of Rankin. C.J., in Hari Mohan v. Gour Mohan, 1930 Cal 253 = 120 IC 453 = 56 Cal 1164, to the effect that

the Courts are free to discover by ordinary means the purpose for which the right of tenancy was originally acquired. It may discover lit for example by the construction of a kabuliyat or a patta. In the absence of evidence of that kind it may discover it by investigation of all the relevant circumstances. But the purpose which is the subject-matter of the inquiry is the purpose of the lessor and the lessee to use the English phrase in the letting in question. One has to see whether their common purpose in respect of this land was that the land should be held for collecting rents and so forth or for cultivation by the tenant himself.

He is also, in my opinion, right in holding that fixity of rent is no criterion for determination of the point at issue for a raiyati holding may be held at a fixed rent equally with a tenure. He has unnecessarily discussed the question whether a raiyat at a fixed rate is possible in Chota Nagpur. I agree with him that there is nothing in the Chota Nagpur Tenancy Act, which is inconsistent with there being a raiyat at fixed rate, though this class of raiyat is not mentioned in the Act. But such a raiyat will be an occupancy raiyat with all its incidents, rights and liabilities and will the special rights given to a raiyat at fixed rate under the Bengal Tenancy Act, where such a raiyat stands in a class by itself. The simple question before the learned Subordinate Judge was to construe the lease and if he found it not clear, then to consider the attendant circumstances.

He has however erred in construing the lease and has not appreciated the decision of the Privy Council in Debendra Nath Das v. Bibudhendra Mansingh, 1918 PC 8 = 45 IC 411 = 45 IA 67 = 45 Cal 805 (PC). That was a suit by persons who claimed to be the under raiyats for a declaration that the entry in the record of rights that the defendants were raiyats was wrong and that they were tenure-holders. In a suit under S. 106, Ben. Ten. Act, the defendants were held to be tenure-holders. This decision was upheld in appeal by the Special Judge, but was reversed by Richardson, J., sitting singly; but on appeal to a Division Bench the decisions of the Settlement Officer and the Special Judge were upheld and the plaintiff was the appellant before their Lordships of the Privy Council where the decision of the Division Bench was upheld. No doubt, that was a case under the Bengal Tenancy Act, and there was a presumption that the tenant was a tenure-holder, and not a raiyat, as the area involved was more than 200 bighas. The present case is under the Chota Nagpur Tenancy Act where no presumption arises on the basis of area. Their Lordships however based their decision also on the construction of the lease. The learned Subordinate Judge is right in thinking that the lease in question left the tenant free to use the land in any way he likes. The words are:

bazciriey khud kasht khivah basabil digar jis sabil se munasib samjken mahasil paidawar se mokarrari majkur ka be tasarruf khudaha dar laya karen etc,

which means that either by cultivating themselves or by any other means--by whatever method they like they may enjoy the produce of the mokarrari property, etc. etc. The words are; as the learned Subordinate Judge has himself pointed out similar to the terms of the lease which were before their Lordships in the case referred to above, and their Lordships held that on the terms it could not be said that the settlement was primarily for the purpose of bringing the land under cultivation by personal agency himself or by hired servants, etc. Their Lordships did not say that the terms were equivocal. They definitely held with the High Court that the lands were taken for purposes other than that of personal and direct cultivation as a raiyat:

The employment of the agency for the cultivation is left entirely to the option of the lessee; the land was leased for cultivation, that is, for agricultural purposes, but the agency to be employed is to be determined by the lessee; he has the power to establish raiyats or under-lease it to others or cultivate it himself, if he can. It cannot be said that the purpose is, primarily or otherwise, that the demised land should be cultivated by his personal agency. At the best, the lease may he said to be equivocal. In their Lordships'' opinion, the High Court and the lower Courts were perfectly right to look to the attendant circumstances to judge of the purpose for which the lease was acquired and to determine the status of the defendant. Apart from the facts appearing in the lease to which the learned Judges of, the High Court have referred as indicating that the land was being taken for par-poses other than that of personal and direct cultivation as a raiyat, there is the outstanding circumstance that the land was leased to a man of means who appears to be resident of another place for the purpose of reclamation and rendering fib for cultivation, agency to be employed for carrying on the cultivation being left to his discretion.

Then there are other circumstances which have been entirely ignored by the learned Subordinate Judge. For instance it is an out and out transfer of the land, the only reservation being the quit rent of Rs. 2 per annum. The lessor transferred all the interest in his land except the right to receive rent. Such a tenancy cannot be said to be a raiyati tenancy. One of the incidents of a raiyati tenancy is that if a raiyat dies intestate leaving no heir, the occupancy right comes to an end. It is impossible to hold that the tenancy in dispute is of that nature. In my opinion, the tenancy is exactly similar to the one which was the subject-matter of a decision in this Court in Baikuntha Gorain v. Ganga Prasad Trivedi (1919) 70 IC 976. It was held in that case that where a patta grants all the rights in the land except the right to receive the rent payable to the superior landlord the grantee is a tenure-holder within the meaning of S. 5, Chota Nagffur Tenancy Act. Mullick, J., said as follows:

We have been taken through the whole of the patta which is in Bengali, and we agree with the view of the Courts below that the patta grants something more than the mere right to cultivate. It grants all the rights save and except the right to receive the rent payable to the superior landlord. In my opinion the grantee comes within the definition of the tenure-holder under S. 5, Chota Nagpur Tenancy Act.

Exactly the same is the case here-The pattah in unequivocal terms grants all the rights to the lessee except the right to receive rent. Then the defendants are residents of another village. The learned Subordinate Judge has further erred in relying upon the fact that the defendants were cultivating the land themselves. This is not an attendant circumstance. In my opinion, the Privy Council decision and the decision of this Court referred to above clearly show that the lease was not a raiyati lease and the defendants are not raiyats, but tenure-holders.

I would therefore allow this appeal with costs, set aside the decree of the lower appellate Court and restore that of the trial Court. The appellant will get his costs of the Court of appeal below.