Chanchal Mahton and Others vs Mahanth Bhagwan Gir and Mr. R. Hudson and Another

In 1876 the proprietor, the predecessor of the plaintiff, settled 24 bighas, 10 kaihas of khudkasht zerait land with one Teg Ali for a period of nine years and thereafter with the 1st party defendants who are the proprietors of the Jitwarpur Factory by successive leases from 1885 (corresponding to 1293 F.S.) down to 1914 to (corresponding to 1321 F.S). In 1322, the plaintiff made a demand for khan possession, but no possession was given by the Factory till 1324. Negotiations for a new lease went on during that year and the next year, and finally on the 23rd September 1916 the present suit was lodged for a declaration of title and recovery of possession. It was discovered that the defendants 1st party had caused to be recorded in the survey papers that they were in possession of only 7 bighas, 8 kathas and 1 dhur of zerait land, and that the remainder of the land constituted the occupancy raiyati holdings of the 2nd party defendants.

The Munsif found that the plaintiff was entitled to recover khas possession of the whole 24 bighas, 10 kathas.

In appeal the District Judge, came to the same conclusion.

In second appeal the High Court was of opinion that the District Judge''s reasons for holding that the lands were zerait were not conclusive and it remanded the whole appeal for re-hearing and decision in accordance with law.

The District Judge has re-heard the appeal and come to the same conclusion as before and the present second appeal is preferred against his judgment of the 2nd December 1921.

The first question is whether the lands in suit are private lands within the meaning of Section 116 of the Bengal Tenancy Act. Section 120 of the Act prescribes what lands the Revenue Officer shall record as proprietor''s private lands and it provides that "if any question arises in a Civil Court as to whether land is or is not a proprietor''s private land, the Court shall have regard to the rules laid down in this section for the guidance of Revenue Officers." The learned District Judge has upon evidence found that an area of 7 bighas, 8 kathas, 1 dhur is admittedly zerait. With regard to the remaining 16 bighas odd he has accepted the evidence adduced by the plaintiff. That evidence was to the effect that the proprietor had cultivated it with his own ploughs and bullocks since three or four years before the lease of 1876. In my opinion there was evidence from which the inference Could be drawn that the land was private land and the finding of the District Judge cannot be challenged in second appeal.

The next question is, whether the plaintiff has rebutted the entry in the Record of Rights which shows the 2nd party defendants to be occupancy raiyats in the 16 bighas odd. The District Judge finds by implication that the Record of Rights has been rebutted by the plaintiff who gives evidence that there never was any raiyat on these lands. He relies upon the recitals in the leases given to Teg Ali in 1876 and to the predecessor of the 1st party defendants in 1881 which speak of the lands being in the possession of the lessor. He also relies upon the circumstance that no power was given in the lease in favour of Teg Ali to settle raiyats on the land. The lease of 1881 in favour of the 1st party defendants is not so clear. It recites that "the lessee by holding possession and occupation and by making and causing to be made proper cultivation of the lease-hold property either by himself growing indigo or other crops or by making settlement with the tenants according to his own choice shall appropriate the proceeds thereof till the term of the lease." The learned Judge apparently construes these words as meaning that the lessee shall arrange for the cultivation of indigo and other crops through agents, and not through persons inducted as raiyats. He finds that, there was no tenant on the land when the 1st party defendants entered into possession and the case made by the 2nd party that they were in possession from before and that they gave kurtwali pattas first of all to Teg Ali and then to the 1st; party defendants and put them in possession, cannot be believed. These kurtwali pattas came down to the year 1310 and the learned Judge finds that the whole story of the 1st party''s acquiring possession from the tenants is false and that the pattas were created in order to supply evidence for the Settlement operations. These findings, inasmuch as they involve the rebuttal of the Settlement record, would have been sufficient to dispose of the case but the learned Judge adds at the end of his judgment that even if the 2nd party defendants were settled as raiyats by the Factory they did not acquire any right of occupancy. It is not clear, how he comes to this conclusion, Possibly reasoning may be this: the first party were holding under a lease for a term of years and therefore, they could not make any contracts of tenancy with raiyats except contracts for a term not exceeding the period of their lease, no lease registered or Unregistered is produced; the tenants, therefore, could only have been hi possession for successive terms of one year by oral lease; Section 116 does not permit the accrual of occupancy rights in favour of such tenants and it has been held by the Privy Council Jagarnath Das v. Janki Singh 66 Ind. 337 : 1 Pat. 340 : 3 P.L.T. : 35 C.L.J. 506 : 43 M.L.J. 55 : 26 C.W.N. 833 : (1922) M.W.N. 410 : A.I.R.(1922) (Pat) 142 : 31 M.L.T. 231 : 49 I.A. 81 (P.C.) that they cannot claim the rights of a non-occupancy raiyat under any part of the Bengal Tenancy Act and that the special Law of Limitation in Schedule III of the Act does not apply; therefore the tenants are liable to ejectment as trespassers on the expiry of the tenancy of their lessors with which their own was co-terminous. The mere finding that the lands are the priyate lands of the proprietor was not sufficient for the disposal of the suit, but possibly the learned Judge''s reasoning was as given above.

But the point really does not arise and it is not understood why the learned Judge has discussed case which has not been made by either party. The case made by the raiyat defendants was not that they at any time were inducted into the lands by the Factory but that the lands were their ancient ancestral occupancy holdings. The Munsif does appear to have found that there had been such an attornment at intervals between 1312 and 1322 and that the tenants had become non-occupancy raiyats but that as they were not claiming under a lease they were not non-occupancy raiyats to whom the period of limitation of six months prescribed for suits for ejectment applied. This was nobody''s case and in fact it was destructive of the case made by the 2nd party defendants.

The 1st party have given up the land in their possession and have no further interest in the litigation and the appeal will, therefore, be dismissed with costs against the 2nd party defendants.

Bucknill, J.

I agree.