Chaitan Mahto and Others vs Sarat Chandra Mahanti

Mahabir Prasad, J.—This appeal by the plaintiff, who is aggrieved by the concurrent decisions of the Courts below dismissing his suit for ejectment of the defendant in occupation of the lands in suit, raises the question as to whether Section 77, Chota Nagpur Tenancy Act bars the acquisition of right of occupancy by korkar under the provisions of Section 67 of the Act.

The case of the plain tiff-appellant was that he was holding the lands in suit as tabedar of the village having been appointed to that office by the Deputy Commissioner after the death of the previous holder of that office Ratan Mahto, and the lands belonged to him and had the incident of a ghatwali or service tenure, and that the respondent without any right whatsoever dispossessed him from these lands. Ratan Mahto, the predecessor-in-office of the plaintiff, bad entered into a collusive and fraudulent compromise with the respondent which was not binding upon him. The respondent was, therefore, in illegal possession of the land and liable to be evicted therefrom.

The case of the respondent in defence was that after the survey and settlement operations, the lands had become sandy and absolutely un-fit for paddy cultivation, and that in order to make them culturable, Ratan Mahto, father of appellant 1, in course of his prudent management settled the suit lands with him about 20 years back with the rental of Rs. 1-8-0 per year, and the respondent at enormous cost improved the lands and made them fit for paddy cultivation. Ratan Mahto, however, brought a suit (NO. 299 of 1935) against the respondent which suit was compromised and Ratan Mahto recognised the respondent as his tenant. Lastly, the case of the respondent was that in any event he having improved the lands and made them fit for paddy cultivation had acquired right of occupancy by korkar in the lands in suit and was not liable to be evicted.

Both the Courts below have held that the respondent had acquired occupancy right by korkar and the story of possession and dispossession set up by the appellants was untrue, and although other issues arising on the pleadings in the suit were decided in favour of the appellants, the suit was dismissed.

Mr. S.C. Ghosh appearing on behalf of the appellants referred to Section 77, Chota Nagpur Tenancy Act which runs:

Except in so fat as the Local Government may otherwise direct by notification, nothing in this Act shall affect any incident of a ghatwali or other service tenure or holding,

and contended that by reason of this provision the lands in question being in nature ghatwali or service tenure, acquisition, of occupancy right by korkar u/s 67 of the Act was not possible. He relied on the decision in the case of Lal Singh Bhumij Vs. Krishto Khutya, in support of his proposition.

The contention of Mr. Ghosh is not welt founded. The decision relied upon by him no doubt held that no right of occupancy or non-occupancy can be acquired in lands subject to ghatwali tenures, as Section 77, Chota Nagpur Tenancy Act effectively prevented the occupancy right from accruing in respect of ghatwali land in so far as this land had to be returned to the landlord in the same condition in which it was given free from any encumbrance or right of any other person imposed upon it. The right of occupancy involved in this case was one dealt with in Chap. 4 of the Act and not one dealt with u/s 67, namely, acquisition of occupancy right by. korkar. The case, therefore, has no application to the right in contest in the present suit. The distinction just drawn was relied on by Dhavle J. in. the case of Digamber Singh Vs. Lengra Manjhi, who held that Section 77 did not bar the application of the provisions of Sections 64 and 67 of the Act to ghatwali lands.

It will be seen that right of occupancy in korkar is almost an inevitable corollary to a customary right to convert land into korkar, and such a right of occupancy certainly stands on a different footing than the occupancy right based on 12 years raiyati occupation, and the principle taken to underlie acquisition of such rights has no application to occupancy rights arising from conversion into korkar as regulated by custom or law. Dhavle J. in the case just mentioned rightly distinguished not only the case of Mohesh Manjhi v. Pran Krishna 1 Cri.L.J. 138 , but Patna decisions, Lal Singh Bhumij Vs. Krishto Khutya, and Mita Dusadh v. Anup Mahto AIR 1928 Pat. 603 holding that Section 77 bars the acquisition of occupancy right by 12 years'' occupation. I entirely agree with the line of reasoning adopted by Dhavle J. for making this distinction in Digamber Singh Vs. Lengra Manjhi, and it is unnecessary to recapitulate that line of reasoning over again.

In the case of Bimla Prasad Kanjilal v. Hare Krishna Bat AIR 1933 Pat 57 , their Lordships expressed their concurrence with the views expressed by Dhavle J. in Digamber Singh Vs. Lengra Manjhi, just mentioned, and observed:

In the case of Korkar, ex hypothesi, the land when settled (or occupied under a local custom making the landlord''s consent unnecessary) was worth nothing or very little and the service tenure stood improved in value to all succeeding incumbents for all time by the costly reclamation effected by the raiyat which would manifestly never have been undertaken unless there was to accrue forthwith a right of occupancy.

In this view of the matter, it will be seen that the occupation by a korkar raiyat does not in any manner decrease the value of the land, and this can in no sense be said to be an encumbrance on the ghatwali land affecting its incident within the meaning of Section 77 of the Act. The Courts below, therefore, were entirely correct in their conclusion that the respondent had acquired a right of occupancy in the lands in question on the finding of fact arrived at by them, namely, that it was established that the respondent had been in possession for a fairly long time by reclaiming the plots in suit by converting them into paddy growing lands. It seems that in the Courts below it was admitted that in ghatwali lands although occupation for 12 years by a raiyat could not lead to an accrual of an occupancy right, there was no bar to accrual of occupancy right in korkar in ghatwali lands.

It was next argued by Mr. Ghose that from the survey record of rights it appears that the suit plots were baid lands, and, therefore, it was impossible to believe that only two or three years after the final publication of the record of rights, at about which time the respondent''s settlement is alleged, the suit lands had become sandy and quite unfit for paddy cultivation. This contention was considered by the Court of appeal below and was overruled. The learned Subordinate Judge states that Ratan, the predecessor-in-office of the appellants himself admitted in the compromise entered into by him with the respondent that the lands had become sandy and unfit for paddy cultivation. This is purely a question of fact, and the Court of appeal below having considered the evidence in the case came to the definite finding that the lands in question at the time of settlement with the respondent had become sandy and unfit for paddy cultivation, and it was the respondent who reclaimed them and converted them into paddy growing lands. The finding is not open to challenge in second appeal before us.

In the result, the decisions of the Courts below are affirmed, and the appeal is dismissed with costs.

Manohar Lall J.

I agree. Section 67, Chota Nagpur Tenancy Act recognises the customary right of a person who converts the land into korkar to acquire an occupancy right. I do not find anything inconsistent in such right being acquired by custom which offends against the provisions of Section 77 of the Act. No incident of a ghatwali tenure is being affected. There is high authority for the proposition that the right of occupancy can also be acquired where the landlord is a service tenure holder. In AIR 1934 5 (Privy Council) , a decision of this Court in Mita Dusadh and Others Vs. Anup Mahto, was overruled. The case strongly relied upon by Mr. Ghose was the case of Lal Singh Bhumij Vs. Krishto Khutya, . The distinction between that case and the case before us was well pointed out by Dhavle J. in the case of Digamber Singh Vs. Lengra Manjhi, . In Bimla Prasad Kanjilal v. Harekrishna AIR 1933 Pat. 57 , the Court expressed serioua doubt as to the correctness of the decision in Lal Singh Bhumij Vs. Krishto Khutya, where no question of korkar was under consideration.

The plaintiff on the death of Ratan has been appointed tabedar of the village, and there, fore, is entitled to the lands as they existed in the condition on that date. He obtained the right to possession from the Deputy Commissioner and the defendant could only be ejected on an application made to the Deputy Commissioner within two years of the date on which he started the korkar. The plaintiff, in my opinion, is bound to recognise the rightful possession of the defendant because the defendant bad, by the customary right, acquired a right to remain in possession. This is an additional reason why I agree with my learned brother in dismissing this appeal with costs.