Chandra Mohan Singh and Others vs Butu Mian and Others

Mohammad Noor, J.—This second appeal arises out of a suit instituted by the plaintiff-respondents for recovery of tnree plots of land in village Kasitaur in the District of Manbhum. Plaintiffs'' case was that they took settlement of these lands under an unregistered hukumnama from the predecessor of the defendant-landlords some time in the year 1860. They complained that defendant No. 1, the landlord, dispossessed them and settled the land''s with the defendants Nos. 2 and 3 On these allegations they sought recovery of possession of the lands. The point for determination was, firstly, whether the hukumnama relied upon by the plaintiffs was genuine and valid, secondly, whether it related to the land in suit, and thirdly, whether the plaintiffs'' suit was barred by limitation The trial Court held that hukumnama was'' genuine and that two of the plots, viz., 186 and 188, were" covered by it. Regarding the third plot, it came to the conclusion that its identity with the lands of the hukumnama was not established. It, therefore, decreed the suit in respect of the two plots mentioned above and dismissed it in respect of the third- The plaintiffs remained satisfied with this decree, but the defendants preferred an appeal ,to the District Judge who upheld the decree of the trial Court and dismissed the appeal. The defendants have preferred this second appeal.

Three points have been urged before me on behalf of the appellants. One is that the finding about the genuineness of the hukumnama is based upon inadmissible documents. The learned District Judge has stated in his judgment that the hukumnama was found to be genuine in some previous suits whose judgments were filed in this case. The learned Advocate contended that these judgments not being inter partes were not admissible to prove the genuineness of the hukumnama. What in fact has happened is this. The defendant contended that the hukumnama was fabricated for the purpose of the suit. The learned District Judge has held that it was not so as it was produced in Courts in several cases previously. On the whole, in my opinion, the plain meaning of the judgment of the learned District Judge is that the hukumnama saw the light of day many years before the controversy arose. There is other evidence relied upon by him for holding that the hukumnama is genuine and there is no substance in this part of the argument of the learned Advocate.

The second point urged was that, as the learned District Judge was unable to find possession of the plaintiffs over the land in suit within 12 years of its institution he, on the authority of the Full Bench decision of this Court in Raja Shiva Prasad Singh Vs. Hira Singh and Others, ought to have dismissed the suit. But according to the finding of the learned District Judge the lands are incapable of continuous user. In fact the finding is that they are sometimes cultivated and sometimes not. Therefore, he has applied the presumption that possession must follow title. The case reported in Raja Shiva Prasad Singh Vs. Hira Singh and Others, was explained by Sir Dawson Miller, 0. J. himself in a later case in Ramnath Sarangi Vs. Gobardhan Pandey, where his Lordship clearly held that though in a suit lor ejectment the plaintiff must prove his possession within 12 years of the suit, the nature of proof will vary according to the nature and circumstances of the land in suit. If the land is of such a nature that it can hardly only be occasionally occupied, then it will be impossible for the plaintiff to prove continuous possession over it and m such a case the presumption of title following possession is available to the plaintiff. I, therefore, overrule this contention also of the learned Advocate.

The third contention of the learned Advocate was that defendants Nos. 2 and 3 after taking settlement from defendant No. L made korkar in plot No. 186 and an application for ejectment'' not having been made by the plaintiffs before the Deputy Commissioner within two years of the commencement of the korkar, the defendants acquired occupancy right and were not liable to be ejected. The learned Advocate relied upon a decision of Dhavle, J. sitting singly in Doman Mia Vs. Gunaram Mahata, . In my opinion at any rate in this case, under tiie express provision of law, the claim of korkar right in the land in suit is not available to the defendants. The'' "decision; relied upon by the learned Advocate is. based upon three Single Judge decisions of this Court. The first one is of Atkinson, J. in Raham Ali v. Chintamon Kumar 38 Ind. Cas. 478 : AIR 1917 Pat. 243. It is not clear from the judgment whether the plaintiffs who sought to eject the defendants were not of a status under whom an occupancy right can be acquired. In other words, it is not clear whether the plaintiffs of that suit who had acquired title from Government were not'' tenure-holders who can have an occupancy raiyat under them. In the present case? we are dealing with a claim of korkar against an occupancy raiyat who cannot have another occupancy raiyat under him.

The next case relied upon by Dhavle, J. is Lal Sahi Palian and Others Vs. Deba Munda and Another, in which Allanson, J., held that a man who was the Mundari Khutkatidar of a village acquired occupancy right by korkar upon the Mundari Khutkati land of another village. In this case also the man against whom the right of occupancy was held to have accrued to the maker of the korkar was a Mundari Khutkatidar who under the law holds a position of tenure-holder also, and the man who was held to have acquired that right was also a Mundari. A Mundari can acquire an occupancy right under a Mundari Khutkatidar. u/s 240(4)(b) a Mundari Khutkatidar can give a lease of uncultivated land to a Mundari to enable him to cultivate it as a raiyat. Allanson, J., himself based his decision on the fact that the plaintiff of that suit was the Malik Mundari Khutkatidar of the village. Therefore, the right was acquired on a land which on the face of the judgment was not encumbered by any occupancy right of another raiyat.

None of the two cases referred to above support the proposition that if a man trespasses upon the holding of an occupancy raiyat and makes korkar therein, he acquires an occupancy if no application for ejectment is made within two years of the commencement of the korkar. The third case referred to by Dhavle, J., is an unreported decision of Ross, J., in Appeal from Appellate Decree No. 89 of 1925 (decided on February 14, 1928. It is a very short judgment and the question does not seem to me to have been discussed. Ross, J., was of opinion that the case was concluded by the decision in Raham Ali v. Chintamon Kumar 38 Ind. Cas. 478 : AIR 1917 Pat. 243 already referred to. But as I have pointed out, that case was not one in which occupancy right was claimed by korkar under another occupancy raiyat. The learned Judge has observed that the acquisition of occupancy right is not confined to a tenant, as the word used in Section 64 of the Act is ''''cultivator". It was not placed before his Lordship that acquisition of an occupancy right against another occupancy raiyat will completely destroy the right of the latter and will not make the former a raiyat under him. With profoundest respect to the learned Judge I beg to differ from the views taken by him. I shall later give my reason for holding that there cannot be the acquisition of an occupancy right under another occupancy raiyat.

Now I have already said that Dhavle, J. relied upon three decisions of the learned Judges sitting singly. Two of them were not the cases in which the right of occupancy was claimed against an occupancy raiyat. The learned Judge has referred to the observation of Allanson, J. to the effect that a tenant also may be a landlord as defined in Section 3(11), Chota Nagpur Tenancy Act. This is so and a landlord against whom a kork''ir right may be acquired may be of a status lower than the proprietor. But as a tenant under him holds a much lower status than he holds under his superior landlord, it necessarily follows as a logical conclusion that he should be in a position of having such a raiyat under him. But a raiyat under a raiyat is an under-raiyat and he has no protected interest under the Chota Nagpur Tenancy Act. Rather, transfer of any kind by a raiyat except that specified is prohibited by Section 46 of the Act. Lease is expressly prohibited. It is obvious that if a raiyat cannot grant lease for korkar, he cannot give a raiyati right by science for two years. An occupancy right can be acquired by korkar u/s 64, Chota Nagpur Tenancy Act, if the landlord of the land does not take necessary steps for ejecting the maker of the korkar within the period prescribed bylaw. But if the landlord is not of a status who can give his consent for creation of an occupancy right, his implied consent cannot create a right which he could not create by express consent. If a man trespasses upon the holding of an occupancy raiyat he cannot acquire an occupancy right under him as there cannot be an occupancy raiyat under another occupancy raiyat. Acquisition of occupancy right by korkar is analogous to its acquisition by adverse possession.

If a man begins korkar and the landlord of the land does not take steps, to eject him for two years he shall be deemed to have given his consent. The same is the case in adverse possession If a man goes and begins to cultivate a land claiming himself to be raiyat and if the landlord allows him to do this for the statutory period the man acquires an occupancy right because by prescription he acquires whit he could acquire if he had held the land under a settlement for the required period. Atkinson, J. in the judgment above referred to has dealt with this aspect of the case. But when the man prescribes a right which is of the same character as the right of one against whom he prescribes he does not acquire a limited right of tenancy but a complete right and such a case is outside the scope of the provision of korkar in the Chota Nagpur Tenancy Act. A right of occupancy under a landlord is a right subordinate to him, but if such a right is acquired against a man who himself is an occupancy raiyat, the right so acquired is the complete annihilation of right of the raiyat and that can only be acquired after twelve years under the general law. I, therefore, respectfully disagree with the views of Dhavle, J. But, strictly speaking, the question does not arise and I, therefore, do not think it necessary to refer this case to a Division Bench. In this particular case the land in question was not an altogether uncultivated land. It used to be cultivated from time to time and the defendants have converted it into paddy land. In that case the express provision of law (Section 66, Chota Nagpur Tenancy Act),, precludes the accrual of occupancy right by korkar. That section runs thus:

Nothing in Section 64 shall authorize any cultivator to convert into korkar any orchard or cultivated or homestead land in the direct possession of another person.

If the defendants have been korkar in the face of the legal prohibition, they cannot claim the protection of law. The Court having found in this case that land was in possession of the plaintiffs till they were dispossessed from it and that it was a cultivated land, the conversion of it into paddy land was not authorized and, therefore, no right accrued to the defendants. In my opinion the appeal fails and it is dismissed with costs. I certify that this is a fit case for Letters Patent Appeal.