Chatter Kumari Debi vs Pratabdhuj Singh and others

In this case both the plaintiff and some of the defendants have preferred appeals from the decision of the Subordinate Judge of Muzaffarpur dated the 24th January 1919. The question for decision is whether the defendants Nos. 2 to 6 have acquired a raiyati interest in the lands in suit or whether the plaintiff is entitled to possession of them as her bakasht lands.

The plaintiff is the widow of the late Raja Mohan Bikram Sha, proprietor of the Ramnagger Raj who died without male issue in 1912. On her husband''s death the plaintiff succeeded to his estate, included in which are the two villages of Manchangwa and Ghoraghat. From the year 1889 these villages together with others with which we are rot concerned were leased under three successive registered ticca patta granted by the late Raja. The ticcadar under the first lease was one Dowlat Singh who held for a period of five years which expired in September 1894. The second lease which was for a period of 10 years from September 1894 to September 1904 was granted to Babu Pratapdhuj also known as Jung Bahadur Singh, the defendant No. 1 in the suit. The third was for a term of 11 years in continuation of the previous one in favour of the defendant No. 1 and expired on the 23rd September 1915. The leases provided that the lessee should not, without the permission of the Raja Sahib, dismiss the Patwari of the villages already holding appointment who, it appears, was employed and paid by the Raja, and if the lessee should employ his own Matsuddi for writing collection papers, etc., he was to furnish a copy of them to the lessor, obtaining a receipt for the same from the registered Patwari, and to file six monthly jamabandi papers in the office of the Raia. Without permission of the Raja Sahib the lessee was not to settle lands at a low rate of rent with his defendents or any raiyat. Otherwise there were no special features in the lease calling for attention. It is not contended that the ticcadar could himself aquire any raiyati interest in any of the demised property during the term of the lease. It also is'' not disputed that apart from the restriction as to not settling the lands at a low rate the ticcadar could settle tenants upon any part of the land other than the landlord''s zerait.

When the last lease expired in 1915 the plaintiff took over prosession from the ticcadar Pratapdhuj Singh and claimed that the lands in dispute, amounting to about 110 bighas altogether in the two Mauz, which were then occupied by the defendants No. 2 to 6, were really the (sic) of the ticcadar, and, as such returned into her direct possession as malik on the termination of the lease.

It is the plaintiffs case that the lands were never in fact settled with the defendants Nos. 2 to 6, or, if they were, that the settlement was merely colourable and made by the ticcadar for his own benefit in the farzi names of the defendants Nos. 2 to 6, so that he might retain a raiyati interest in the disputed lands at a low rate of rent after his lease terminated.

The defendant No. 1 disclaims all interest in the disputed lands and denies that the other defendants were his farzidars. It is the defendants'' case that about 32 bighas odd in Manchangwa and 18 bighas odd in Ghoraghat were the ancestral kaimi holding of the defendants Nos. 2, 3 and 4 who form a joint family and that these lands were recorded in the names of their respective fathers in the Record of Rights prepared at the Cadastral Survy and Settlement operations in 1898, having been in their family before the defendant No. 1 acquired any interest in the land. These three defendants further acquired by settlement from Pratapdhuj Singh, the ticcadar, a further plot of 3 bighas and some odd cottahs in Manchangwa in 1905. In July of the same year Munder Singh, now deceased; the father of the defendants Nos. 3 and 4, endeavoured to obtain some Parti lands in the Mauzas from the ticcadar for the purpose of grazing his bullocks but without success. He thereupon applied to the Raja, with whom he was on friendly terms, to ihterecede with the ticcadar. The Raja thereupon issued a Parwana dated the 25th July 1905 addressed to Pratapdhuj Singh requesting him to arrange that Munder Singh should get about 20 to 25 bighas of Parti land for grazing his plough bullocks and storing straw, adding that:

If, at any time, the said Babu bring the said Parti land under his cultivation contrary to these terms, then you can realise from the said Babu a fair and proper rent for the said Parti land." On receipt of this document Pratapdhuj Singh told the Patwari Amar Lal, who, as already stated, was a Raj servant, to settle some lands with Munder Singh on the terms mentioned in the Parwana which accordingly was done. In fact the land settled with Munder Singh in this manner was altogether between 38 and 39 bighas in the two villages. No rent was to be paid for it, but if it should be brought under cultivation then a fair rent was to be assessed. The defendants Nos. 2, 3 and 4 thus came to have altogether a holding of about 93 bighas in the two Mauzas and this land has been recorded in their names in the Record of Rights prepared at the Revisional Settlement and finally published in 1916. The remainder of the disputed land, amounting to about 17 bighas, was settle with the defendants Nos. 5 and 6 by the ticcadar in small plots at different times between the years 1899 and 1913. For all this land, except that which was settled in accordance with the terms of the Parwana, rent was payable by the tenants to the ticcadar and the sum is in each case recorded in the Record of Rights.

During the Revisional Settlement operations which began before the last ticca lease terminated, the plaintiff objected to the lands being recorded in the names of the defendants as ruiyats and claimed them as ticcadar''s bakasht, contending that the defendants were merely the farzidars of the ticcadar. The objection was heard in February 1914 by the Khanapuri Officer who, after taking evidence on behalf of both parties, dismissed the objection. His order was subsequently confirmed by the attestation officer. An objection by the plaintiff under S. 103A of the Bengel Tenancy Act was subsequently tiled and was heard before the Assistant Settlement Officer in May 1915. That officer, after hearing the evidence, dismissed the petition and the names of the defendants were entered as raiyats in the Record of Rights finally published in January 1916.

At the trial the plaintiff did not seriously dispute the fact that the lands had been settled with the defendants Nos. 2 to 6 and no serious attempt appears to have been made to rebut the presumption arising from the earlier Record of Rights published in 1898, after the Cadastral Survey, which recorded the 50 bighas as the kaimi khasht of the ancestors of the defendants Nos. 2 to 4. She contended, however, that the settlement was a farzi transaction for the benefit of the ticcadar and that the lands, and especially those more recently settled, were cultivated by the servants of the ticcadar and not by the other defendants. She also questioned the authenticity of the Parwana issued by the Raja in 1905 and disputed the bona fides of the settlement alleged to have been made in consequence thereof. She also contended that as no rent had been settled for what may be called the Parwana lands the relationship of landlord and tenant had not been created between the parties with respect to these lands. As the lands recorded in the Cadastral Survey as the kashi of the defendants'' ancestors were not settled with them by the defendant No. 1, it was suggested that Dowlat Singh, the ticcadar under the first lease, granted by the Raja for the years 1889 to 1894, was merely the servant and benamidar of Pratapdhuj Singh and that the settlement was made by Dowlat Singh in the interests of Pratapdhuj.

The learned Subordinate Judge dismissed the suit as to all the lands except the 30 bighas of Party land settled with the defendants Nos. 2, 3 and 4 in pursuance of the Parwana of 1905 for which he gave a decree in favour of the plaintitf.

From this decision the defendants Nos. 2, 3 and 4 have appealed and contend that the learned Subordinate Judge has gone wrong both in law and fact in holding that no proper settlement of these lands was made with them. The plaintiff has also appealed and contends that the defendants Nos. 2 to 6 were the farzidars of the defendant No. 1 and further that the settlement by the latter was contrary to the terms of the ticca patta executed in his favour and is not binding on the plaintiff.

It will be convenient to deal first with the plaintiff''s appeal which is numbered 89 of 1919.

Apart from the Parwana lands which were settled in 1S05, and for which the plaintiff has got a decree in her favour, it will be convenient to remember that the lands, the subject of the plaintiff''s appeal, consist of (1) 50 bighas or thereabouts claimed as the ancestral kasht of the defendants Nos. 2, 3 and 4, which may be referred to as the ancestral lands, and, (2) 3 bighas and some odd cottahs settled with the defendants Nos. 2, 3 and 4 by the defendant No. 1 in 1905 and about 18 bighas settled with the defendants Nos. 6 and 7 at different times between 1389 and 1913.

There was a volume of evidence both documentary and oral to show that the defendants Nos. 2 to 6 and not the defendant No. 1 were the real occupiers. The Record of Rights is also in their favour and it is sufficient to say that the plaintiff has entirely failed to make out a case that the defendants Nos. 2 to 6 were the farzidars of the defendant No. 1. Further there is no evidence to show that the rent assessed for the ancestral lands and the subsequently settled lands was at a low rate. There is likewise no evidence from which it can be inferred that Dowlat Singh, even if he settled the ancestral lands with the defendants'' father, held the lease merely as a benamidar for Pratapdhuj Singh. Nor is there anything to show that the ancestral lands were in fact settled by Dowlat. In so far as the plaintiff''s appeal is concerned it must, in my opinion, be dismissed with costs to the defendants who have appeared.

The appeal by the defendants Nos. 2 to 4 is numbered 116 of 1919. The question for determination in this appeal is whether there was in fact a settlement of the Parwana lands with the defendants Nos. 2 to 4 and, if so, whether it is binding upon the plaintiff. I have already held that there is nothing in the evidence to show that these defendants were farzidars of Pratapdhnj Singh, and this is in accordance with the learned Subordinate Judges'' finding.

He found, however, that the defendants had not made out their title to the Parwana lands partly on the ground that the circumstances under which they were settled were suspicious and partly on the ground that as no rent was immediately payable the relationship of landlord and tenant was not created. He was of opinion that there could be no tenancy unless there was a contract to pay rent. I shall consider these questions separately.

Here his Lordship discussed in detail the reasons which led the Subordinate Judge to regard the Parwana with suspicion.

From the Parwana it would appear that the lands were originally Parti and were to be settled with the tenant for grazing cattle and storing straw, and that no rent was to be payable as long as the land was used for that purpose but that, if it should be brought under cultivation, a fair rent was to be assessed. The defendant No. 1 in his evidence says he directed the Patwari Amar Lall to settle about 25 bighas of Parti land with Munder Singh and that when the latter some time later began to cultivate the lands he demanded rent at the rate of Rs. 4 per bigha. The tenant offered a lower rate, viz., that which he paid for the other lands occupied by him. About that time the Settlement operations began and no agreement as to rent was come to before the defendant No. 1''s ticca lease expired in 1915. In 1916 the Record of Rights was finally published recording the names of the defendants Nos. 2, 3 and 4 as raiyats after the objection by the plaintiff, already referred to, her husband having in the meantime died. After the Record of Rights it was open to the landlord to have a fair and equitable rent settled for the lands which by that time appear to have been brought under cultivation but this apparently was not done. Instead, the plaintiff instituted the present suit in September 1916, Munder Singh, with whom the settlement was made, died some years ago and cannot be called as a witness. Amar Lall, Patwari, the plaintiff''s servant, through whom the settlement was made, was not called to dispute the settlement. On this evidence there can be no room for doubt that the settlement was made as alleged by the defendants. Moreover, the Record of Rights is in their favour and raises a presumption which, in my opinion, so far from being rebutted, is supported by the evidence. The immediate payment of rent is not an essential factor in the creation of a tenancy. It is by no means unusual for waste lands to be granted to a tenant by his landlord with a stipulation that no rant shall be payable until they are brought under cultivation. There is nothing in the Bengal Tenancy Act which prevents such an arrangement. The definition of tenant in section 3(3) of the Act is "a person who holds land under another person and is, or but for a special contract would be, liable to pay rent for that land to that person." There is no reason why the landlord should not forego the payment of rent in the case of waste lands until they are made fit for cultivation by the labour of the tenant. Such an arrangement is for their mutual benefit. The tenant gets the use of the land for a limited purpose free of rent and gives his labour to render the land more productive to his landlord. The landlord gets the benefit of the tenant''s labour which improves the nature of the land and increases its letting value.

References to four cases were given in the judgement of the learned Subordinate Judge in support of his view that there can be no tenancy unless there is a contract to pay rent. Two of the cases appear to be wrong references and as their names were not given I have been unable to trace them. Of the other two that of Lyons v. Betts 13 W.R. 94, merely lays down that willingness to pay rent does not make a trespasser a tenant. The other Deo Nandan Pershad Vs. Meghu Mahton, , is an authority for the proposition that a mere request by the plaintiff to the defendant to give up possession of land and to pay the produce or the value thereof during occupation cannot be regarded as a demand for rent and is not sufficient to create the relationship of landlord and tenant which is a matter of contract. Neither of these cases supports the broad proposition that there can be no tenancy where no rent is payable. It was finally contended that the settlement of this land was against the terms of the ticca patta which does not permit the ticcadar to grant lands at a low rate without the consent of the landlord. There appear to me to be two answers to this argument; first, the settlement was made on the landlord''s instructions and, secondly, the land was not settled at a low rate. The ticcadar, during the term of his lease, could no doubt forego the right-to receive any rent at all, provided he made no contract which would bind the landlord afterwards. In the present case he has not impinged on the landlord''s right to demand a fair and equitable rent when the lands are brought, as they now are, under cultivation. For the above reasons. I am of opinion that the appeal of the defendants Nos. 2, 3 and 4 should be allowed with costs against the plaintiff. The decree of the Subordinate Judge will be set aside in so far as it finds in favour of the plaintiff''s right to possession of 38 bighas 17 cottahs 5 dhurs of the land in suit together with proportionate costs, and in lieu thereof a decree will be entered in favour of those defendants dismissing the plaintiff''s suit with costs.

Mullick, J.

I agree.