Chand Mul and Another vs Naku Manjhi and Others

Mohamad Noor, J.—This is an appeal by the plaintiff and his lessor, defendant 4, against the dismissal by the lower appellate Court of the plaintiff''s suit for a declaration that he has obtained from defendant 4 a permanent raiyati right in the land in suit and that the principal defendants (defendants 1 to 3) have no right, title or interest therein, and for a decree for confirmation of possession in respect of the land in suit, or, in the alternative, for recovery of possession of the same. The plaintiff also asked for damages and for a permanent injunction against the principal defendants restraining them from interfering with the plaintiff''s possession over the land in suit and for costs and such other relief as the plaintiff may be found entitled to. The pro forma defendant (defendant 4) Raja Wazir Narayan Singh is the proprietor of gadi Serampur in the District of Hazaribagh. The plaintiff obtained from him a raiyati lease of certain uncultivated lands situated in several villages of which 29068 acres, situated in village Jhalakdiha, is the subject matter of the present suit.

The plaintiffs'' case is that when after taking the lease he went to reclaim the land in question he was obstructed by the principal defendants. The result was a criminal case which was pending when the present suit was instituted. Similar suits were instituted by the plaintiff in respect of the lands of other villages against different defendants. All of them were tried together. We are however in this appeal concerned with one suit only, namely No. 85 of 1927. It was contested by defendants 1 to 3. They denied the right of defendant 4 to settle the lands with the plaintiff and alleged that the land in suit had all along been in their possession. Defendant 1, Nakoo Manjhi, according to the records prepared at the last settlement operation, is a pardhan of the village Jhalakdiha and defendants 2 and 3 are raiyats of the village. In the written statement of these three defendants however pardhani is claimed by all of them. The learned Munsif decreed the suit except in respect of the lands which had already been reclaimed by the raiyats of Jhalakdiha. On appeal by the defendants the learned Judicial Commissioner of Chota Nagpur has dismissed it. The plaintiff and defendant 4 have preferred this second appeal. The appeal was first disposed of on compromise, but on an application of defendant 1 the compromise decree was set aside and the appeal was heard on merits.

The land of village Jhalakdiha has been recorded under two khatas. Khata No. 1 which consists of about 300 acres is the subject-matter of the present suit and is the khas khata of the proprietor in his direct possession. The remaining land, also about 300 acres, has been recorded in khata No. 2, the pardhani khata of defendant 1. In the remarks column of khata No. 1, which consists of waste and jungle lands only, it is mentioned that the raiyats can reclaim the land of this khata with the permission of the pardhan. In the record of the customary rights of the pardhan (pardhani hakukat) it is recorded in column (gha) (6) that the pardhan has a right to settle the uncultivated lands of the village. The former entry is at least to be presumed to be correct and the latter about the customary rights of the pardhan is conclusive evidence of his rights u/s 132, Chota Nagpur Tenancy Act. It is on the strength of these two entries that the learned Judicial Commissioner has held that the plaintiff did not acquire any valid raiyati right in the land in suit from the pro forma defendant, and that defendant had no right to make raiyati settlement of the land. Now the simple question involved in the appeal is whether the learned Judicial Commissioner is right in his interpretation of the effect of the two entries referred to above and whether the defendant 4 could make a raiyati settlement of the land ignoring the pardhan. I have already stated that the entries in the Record of Rights are both in the remarks column of the khatian of khata No. 1 which is recorded in the name of the proprietor and also in the record about the customary rights of the pardhan, and, in my opinion, on these entries the decision of the learned Judicial Commissioner is correct.

The entry in the remarks column of khata No. 1. which is the subject-matter of the suit, as I have said, is that the raiyats can reclaim the land with the permission of the pardhan. This clearly shows that the power of the pardhan to control the reclamation of the waste lands of the village is not confined to the lands which have been recorded in his khata, that is, khata No. 2, but extends to khata No. 1 also. The learned Advocate, who appeared on behalf of the appellant, has contended that the entry in the remarks column of the Record of Rights does not take away the inherent right of the proprietor to make settlement of the land as he likes, or to bring it into his direct cultivation. This is the view which seems to have appealed to the learned Munsif and it was on that basis that he decreed the plaintiff''s suit. But the learned Judicial Commissioner has rightly pointed out that the inference to be drawn from these entries leads one to the irresistible conclusion that the rights of the proprietor to reclaim waste lands of the village are subject to the consent of the pardhan and cannot be carried on over his head. The villagers have a prior right to reclamation and the pardhan is the custodian of the right of the villagers. If the proprietor can settle the lands with strangers over the head of the pardhan, or bring them under his own cultivation, the Record of Rights which makes it incumbent even for the raiyats to obtain the permission of the pardhan for bringing the land under cultivation becomes absolutely nugatory. This entry in my opinion, should be read along with the entry in the pardhani records of the village which was entirely ignored by the learned Munsif. It was contended before us, as it was contended before the Courts below, that the entry in the pardhani record Ex. A (2) relates to the land of khata No. 2 only, which is the pardhani khata of defendant 1, but the learned Judicial Commissioner has rightly overruled this contention, The heading is: "The rights of the pardhans in the village."

This right is not confined to the land which has been recorded in the pardhani khata of the defendant, that is, khata No. 2. This is supported by the fact that according to the entry in the remarks column of khata No. 1 the permission of the pardhan to make reclamation has been made a condition precedent to the reclamation by the raiyats. To hold otherwise will result in bringing about an anomalous position. A serious conflict will arise between the proprietor and the pardhan. Suppose that the pardhan allows a certain raiyat to make reclamation of the land as he is authorised to do under the entry in the remarks column of khata No. 1, or makes settlement as he is authorised to do under the custom recorded in the pardhani record, the man who takes this settlement from him is bound to come into clash with the man who may have taken settlement from the proprietor. The learned advocate contended that the custom, which has been recorded, is unreasonable in as much as it takes away from the landlord his undoubted right of dealing with the land and that we should not give effect to it. I do not, however, think that the custom recorded in the Record of Rights is unreasonable. No doubt a proprietor has a right to settle his land in any way he likes, but this right is subject to the rights which others have acquired either by contract or custom. The learned Judicial Commissioner has rightly pointed out that the position is similar to the position if a proprietor creates a tenure and thereby limits his right over the land of such a tenure. Pardhani villages are something like tenures though not exactly so. A pardhan partakes the position of a tenure-holder and also of a raiyat of a privileged class in respect of the lands actually held by him.

He is for some purposes an agent of the proprietor, though of course a hereditary agent not removable according to the will of the proprietor. At the same time he is for certain purposes an agent of the raiyats also and custodian of their interest. When a village is pardhani it is obvious that the rights of the proprietor in that village must be subject to the rights of the pardhan and of the raiyats of the village of which the pardhan is the custodian u/s 64, Chota Nagpur Tenancy Act, a custom is recognised under which raiyats are entitled to bring land under cultivation without the consent of the landlord. This clearly shows that the legislature has recognised custom in derogation to the theoretical right of the landlord. The learned advocate further argued that the entry in the remarks column of the Record of Rights was beyond the power of the Settlement Officer to record as the law authorised him to record customs only in respect of the tenancy of the pardhan, and the rights to be recorded must be the rights of the tenants of the land and not of the outsiders. He contended that the lands of khata No. 1 are outside the tenancy of the pardhan and, therefore, the custom recorded in respect of it in favour of the pardhan was beyond the scope of the authority of the Settlement Officer. In my opinion this argument cannot be accepted. The pardhan is a pardhan of the village, and the village under the Chota Nagpur Tenancy Act, means:

In any local area in which survey has been made a Record of Rights prepared under any enactment for the time being in force, the area included within the same exterior boundary in the village map finally adopted in making such survey and record, etc.

Therefore, when defendant I has been recorded as pardhan of the village Jhalakdiha, it means that he is the pardhan of the entire area of the village. He may, however, have different rights over different areas included within the village. He has got some higher rights in the land of khata No. 2, but he has still got some right over the lands of khata No. 1. The record in my opinion is in favour of the landlord, in as much as the complete right of pardhanship has been given to the pardhan only in the lands of khata No. 2 and only a limited right in the lands of khata No. 1. The area included in khata No. 1 is no doubt in possession of the landlord and he has all rights over it subject to such rights as have been specifically recorded in favour of the pardhan or raiyats of the village. In these circumstances I find no merits in this appeal, and I would dismiss it with costs.

Macpherson, J.

I agree entirely.