Chaturbhuj Singh vs Sarada Charan Guha and Others

Dhavle, J.—These appeals arise out of two suits for the recovery of Lands in a mauza called Paijuna. Tauzi No. 691 of this mauza was divided into four pattis, a seven-anna patti which is referred to in the evidence as the patti of Raja Motichand of Benares or briefly the Benares patti, a patti of four annas bearing No. 1340 which later became No. 9032, another patti of four annas bearing No. 1341 which afterwards became 9033, and a one-anna patti bearing No. 1342 which afterwards became No. 9034. The Babus of a mauza called Hirdanbigha acquired the four-anna patti No. 1340 by two kobalas of 1884 and 1896; they were divided into two branches, the family of Ramchandra Prasad and the family of Bhagwat Prasad, each of which owned a moiety of this minor tauzi.

In 1877 the Babus had also acquired by purchase a two-thirds interest in the one-anna patti, tauzi No. 1342, each of the two branches taking a one-third share in the patti, and the remaining one-third being the property of the ancestor of one Nawalkishore. The interest of Ramchandra Prasad''s family in tauzi Nos. 9032 and 9034--I propose in the rest of this judgment to use the modern tauzi numbers only--was sold in 1910 to one Bhabhichhan Singh in repayment of large sums of money advanced by him to the family. The interest owned in these two tauzis by Bhagwat Prasad''s family, who also had contracted mortgage debts from Bhabhichhan and had a decree obtained against them by him in 1905, passed to Babu Sarada Charan Guha, the plaintiff under an English mortgage of 1905 which was foreclosed in 1911, the plaintiff obtaining delivery of possession through the court on the 4th of November, 1911. Khata No. 392, consisting of 15 plots with an area of 21.31 acres, formed part of the share of tauzi No. 9034 thus obtained by the plaintiff.

In 1919 a collectorate partition or set of partitions was begun at the instance of the plaintiff; this was concluded in 1922 and possession given to the respective cosharers u/s 94, Estates Partition Act, Bengal Act 5 of 1897, on 19th May, 1922.

As a result of this, the plaintiff was left with only six plots, measuring 6.29 acres, out of the fifteen plots of khata No. 392 in tauzi No. 9034; but he also received four plots, measuring 4.44 acres in the same tauzi, out of khata No. 393, a khata consisting of 14 plots with an area of 23.46 acres, which had till then been in the share purchased by Bhabhichhan from Ramchandra''s family.

He further received the whole of another khata No. 343, measuring 56.15 acres, in tauzi No. 9032 which also had till then lain in the same share. In the record-of-rights, which was finally published in February, 1910, these three khatas, Nos. 392, 393 and 343--the first two lying in tauzi No. 9034 and the last in tauzi No. 9032--had been shown as debottar held by Shri Thakur Lachhmi Narayan (the private family idol of the Hirdanbigha Babus) under the management, in the case of khata No. 392, of Kishun Dutt Jha, and in respect of the other two khatas, of Jugal Jha. In or about 1916 these lands were entered as rent-free tenures in Register V and assessed to cess; the register purports to be a register of "land held without payment of rent and paying cess direct to the Collector u/s 71, Act 9 (B.C.) of 1880," the Cess Act still in force.

The holder of the lands was at first shown in this Register as Shri Thakur Lachhmi Narayan under the management of one or the other Jha, but in 1917 Bhabhichhan, the person already referred to as the creditor of the families of Ramchandra Prasad and Bhagwat Prasad and purchaser of the interests of the former family, got himself entered in this Register as the holder of the lands.

In the following year Bhabhichhan''s name was replaced, apparently on account of his death by that of his son Mangani Singh. In August, 1922, certificates were filed against Mangani under the Bihar and Orissa Public Demands Recovery Act, 1914, on account of the January and June instalments of cess due from the three khatas. On 16th January, 1923, the lands were sold to the highest bidder, Chaturbhuj Singh.

The plaintiff, who was no party to these proceedings, endeavoured to get sales set aside by applications and appeals under the Public Demands Recovery Act, but without success. He then instituted two Munsif suits for confirmation of possession, one in respect of the six plots of khata No. 392 and four plots of khata No. 393 in tauzi No. 9034, and the other in respect of the entire khata No. 343 in tauzi No. 9032. Questions of valuation were apparently raised, and in the meanwhile on the 30th of November, 1924, Chaturbhuj Singh, the certificate purchaser, was put into possession by the Certificate Officer.

The plaintiff thereupon amended his plaints and filed them in a court of higher jurisdiction--the third court of the Subordinate Judge at Patna--asking for recovery of possession of the disputed lands, on the footing that they are his zirat, and not debottar rent-free lands, and that the certificates of August, 1922, and the sales thereunder were void as against him, and for mesne profits. He impleaded Chaturbhuj, the certificate purchaser, and his descendants as defendants 1 to 7. Mangani Singh who replaced Bhabhichhan Singh in Register V in 1917, and his minor brother Harkant Singh were impleaded as defendants 9 and 10. In suit No. 18 of 1924, out of which arises appeal No. 81 of 1928, and which relates to tauzi No. 9034, he impleaded Jadunath Jha, son of Kishun Dutta Jha, and Jugal Jha as defendants 8 and 11; Kishun Dutta and Jugal were the Jhas whose names were shown as managers of the two khatas respectively, on behalf of the Thakur, in the record-of-rights, though Kishun Dutt alone was shown in Register 5. Jugal was impleaded as defendant 8 in suit No. 48 of 1925 (corresponding to appeal No. 99 of 1927) relating to tauzi No. 9032, Mangani and the Jhas did not appear.

The suits were contested by Chaturbhuj Singh alone, defendant 1, who pleaded that the lands were the debottar of Thakur Lachhmi Narayan and not the Malik''s khudkasht, that they had been properly sold for cess due, and that he had purchased them on his own account and not, as alleged by the plaintiff, as a benamidar for Mangani Singh. The learned Subordinate Judge came to the conclusion that the entries of debottar in the record-of-rights had been rebutted by the evidence, that the lands in suit are the bakasht lands, of the plaintiff, that the certificate sales had conveyed nothing to the purchaser as Mangani the certificate-debtor, had no real interest in the lands at the time of the certificate proceedings, and that Chaturbhuj was a mere benamidar for Mangani Singh. He accordingly gave the plaintiff decrees for recovery of khas possession, and for mesne profits from defendants 1 and 9, namely Chaturbhuj and Mangani.

Chaturbhuj now appeals, and urges that there is no reliable evidence to rebut the debottar entries in the record-of-rights, that he is not Mangani Singh''s benamidar, and that plaintiff''s title to the lands not having been properly made out, the suits should have been dismissed.

It is convenient to deal first with a technical point urged on behalf of the appellant, viz., that the suits were bad on the ground of non-joinder of necessary parties. Who these necessary parties are was not specifically mentioned in the written statements of the appellant. It was however argued in the lower Court that the Secretary of State was a necessary party, and the learned Subordinate Judge observed that under O.1, R.13, Civil P.C, the objection could not be permitted to be taken at that stage, and further, that even if it was allowed to be taken, the Secretary of State was not a necessary party. The contention advanced in this Court is that the certificates were issued suo motu by the Cess Deputy Collector, that the Secretary of State was the "certificate-holder" as defined in Section 3(2), Public Demands Recovery Act, and that it was accordingly necessary to make him a party to the suit, as ruled in Gobind Chandra v. Hemanta Kumari [1904] 31 Cal 159.

That however was a suit to set aside a certificate sale, and Maclean, C.J. apparently treated it as a suit brought for that purpose by the judgment debtor, notwithstanding the fact that one of the plaintiffs does not appear to have been named in the certificate at all. The present suits are substantially suits for the recovery of property, and they have been brought by a person who is not the certificate-debtor and does not claim under him--plaintiff''s title under the collectorate batwara being derived before the issue of the certificates, and Mangani further having been a party to the batwara in his capacity of zamindar only whereas it is appellant''s contention that Mangani was the certificate-debtor only in the capacity of the manager on behalf of the idol, the rent-free holder of the raiyati lands.

It is true that the plaints asked for declarations that the certificates and sales were "void as against the plaintiff and passed no title to defendant 1 and other defendants" but this relief was unnecessary and has not in fact been given to the plaintiff. The ruling in Gobind Chandra Shaha v. Hemanta Kumari Dasi [1904] 31 Cal 159 is thus easily distinguishable and was so distinguished in Raghuraj Singh v. Maharaj Lal [1910] 5 IC 341, and Gobind Prosad v. Basiruddin [1909] 1IC 313, in which it was held that the Secretary of State is not a necessary party to a suit for recovery of property sold under a certificate issued not against the plaintiff but against a third party; in the former of these two rulings, reference was also made to the observation of their Lordships of the Judicial Committee in Motilal v. Karrabuldin [1898] 25 Cal 179, that "between setting aside a sale and holding that the plaintiff''s rights are not affected by it, there is a wide difference." It cannot therefore be held that the suits are bad for the plaintiff''s failure to join the Secretary of State as a defendant.

It has also been urged that the suits are bad because the idol Thakur Shri Lachhmi Narayan was not impleaded. The reason advanced for taking the idol to be a necessary party is that the appellant claims to have purchased the idol''s property at the certificate sales, Section 26(1), Bihar and Orissa Public Demands Recovery Act, however expressly provides that in a certificate sale

there shall vest in the purchaser merely the right, title and interest of the certificate-debtor at the time of the sale even though the property itself be specified;

and in the present cases the certificate-debtor was Mangani Singh without any reference to any possible relation of his to the Thakur. The point will be further dealt with in another connexion. Assuming moreover that the appellant came into possession of the property as a purchaser of the interest of the idol, it would, in my opinion, have still been unnecessary to join the idol as a defendant in these suits.

The wrong complained of by the plaintiff is dispossession by the appellant, and the substantial relief sought is recovery of possession from him. Any decree that the plaintiff may obtain in such suits will operate against the party defendant in juridical possession and not against any of his predecessors in title; the plaintiff has no cause of action for proceeding against such predecessors. This was the view taken in Musammat Bhagwati Kuer Vs. Babu Jagdam Sahay and Babu Ram Prasad and Others, , following Kashi v. Sadashiv [1897] 21 Bom 229. The objection that the suits were bad for non-joinder of necessary parties must, therefore, be over-ruled.

The substantial question in the appeals is whether the disputed lands are debottar (as shown in the record-of rights) or plaintiff''s bakasht (as found by the lower Court). u/s 103-B, Bengal Tenancy Act, the entry or set of entries in the record-of-rights "shall be presumed to be correct until it is proved by evidence to be incorrect". Mr. Mullick for the plaintiff-respondent has argued, on the authority of Jagdeo Narain Singh v. Baldeo Singh AIR 1922 PC 272 that once the plaintiff has proved that the lands which are claimed to be debottar lie within his estate, the onus is shifted. In the present cases there is no dispute that the lands in question do lie within the ambit of the zamindari kakhtas which have been allotted to the plaintiff at the collectorate batwara; but the point for decision here is whether the lands are debottar or secular property, and not whether the holdings are rent- free or subject to the payment of rent, as happened in Jagdeo Narain Singh''s case AIR 1922 PC 272.

It was pointed out in Stone-wigg v. Katneshwar Narayan AIR 1923 Pat 340 and Jodha Sahu Vs. Tirbena Sahu and Others, , that the observations of the Judicial Committee in Jagdo''s AIR 1922 PC 272 case do not really support the proposition that where the record-of-rights is in favour of the tenant, it is still necessary for him to establish by evidence that the entry in his favour in the record-of-rights is correct: that, I think, would be contrary to the clear words of the section. In my opinion the burden lay on the plaintiff to show by evidence that the debottar entries in the record-of-rights were incorrect; and the very form of the finding of the learned Subordinate Judge

that the entries in the Record of Rights have been sufficiently rebutted and that the lands are not debottar,

shows where, as I consider rightly, the burden was placed. Reference must also be made to one or two points on which confusion may arise from looseness of the pleadings. In his plaints the plaintiff spoke of the lands as zirat; in the written statement it was denied that the lands were khudkasht, but it was stated that they were the proprietors'' "jotebakasht" set apart and dedicated as debottar for the services of the Thakurji.

The learned Subordinate Judge has used the word baksht in his finding, and has explained that in the judgment he has used the word khudkasht

not in the special sense attached to it by the Bengal Tenancy Act but in the sense of bakasht or the proprietor''s own cultivated land.

Again, at one or two places in the written statements and in Register V the lands are referred to as rent-free tenures. But the record-of-rights shows them as the raiyati holdings of the Thakur, and Sir Sultan Ahmad for the appellant has definitely asked us to deal with them on that footing, and not as tenures, an alternative which presents obvious difficulties of its own to the appellant.

The history of the lands differs according as they originally lay in the patti of Ramchandra Prasad''s family (khata Nos. 393 and 343 of tauzi Nos. 9034 and 9032 respectively) or in the patti of Bhagwat Prasad''s family (khata No. 392 of tauzi No. 9034). As regards the former, the plaintiff''s case rests very largely on Ex. 27, the deed of sale executed by Ramchandra''s family in favour of Bhabhichhan and his relations on 4th October, 1910, coupled with Ex. 28, a debottarnama executed by that family two days previously. These two documents are dated only eight months after the record-of-rights of the mauza; and we have it from Gulalnarain Singh, brother of Bhagwat Prasad, the defence witness who speaks most about the debottar character of the disputed lands, that the debottarnama was executed by Ramchandra''s family because Bhabhichhan said that he would take the Thakurji''s lands in Paijuna and asked Ramchandra to give lands elsewhere to the Thakurji.

The debottarnama begins with the very important recitals that formerly there was no immovable property separately set apart for meeting the expenses of worship of the ancestral family deity Shri Thakur Lachhmi Narayan, that the family being joint and the income considerable, there was no necessity to transfer any property for defraying the expenses of seba and puja of the Thakur and that in the Survey and Settlement proceedings the family had got 92 bighas of their khudkasht in mauza Paijuna, tauzi No. 9032, and 37 bighas 11 cottahs 10 dhurs, kamat khudkasht, in tauzi No. 9034, recorded in the name of the Thakur, under the management of the second party (namely Jugal Nath Jha, who had joined in the execution of the debottarnama)

as a temporary arrangement. But we the executants first party have not executed any deed as required by law with regard to the same, and the transfer of the said property to Shri Thakurji Maharaj has not yet become complete and absolute.

The deed then explains that the lands in question which are specified in the schedule under khata Nos. 343 and 393 respectively, are subject to an incumbrance on account of a prior mortgage bond on which Bhabhichhan had obtained a decree in 1907,

in consequence of which it seems very difficult that the title of Thakurji with regard to the said lands can remain intact and secure... As we the executants first party have now been reduced to straitened circumstances, it is very necessary to make some permanent arrangement for the expenses of the puja of Shri Thakurji Maharaj, and therefore to transfer for ever some immovable property which may be free from incumbrance as debottar land.

The executants first party therefore "in the capacity of shebait and manager of Sri Thakur Lachmi Narayan Maharaj" and the executant second party

do declare that the Thakur aforesaid has now no right whatsoever in or any connexion or concern with the said lands. The said lands are declared to be the milkiat and khudkasht of us the executants, first party as before ..., and in place of those lands the executants first party have transferred and dedicated for ever the whole and entire one anna eight dams (and odd) fractional share in Mauza Bihta and two annas eight dams (and odd) share in Mauza Lachhmipur ... or (Hirdanbigha), the value and Income of which by no means less (but) rather more than the value and income of the said lands, as debottar to Shri Thakur Lachmi Narayanji Maharaj for meeting the expenses of Seba Puja....

As I have already said, this debottarnama was followed only two days later by the deed of sale in favour of Bhabhichhan and others; the two transactions were practically simultaneous and para. 8 of the deed of sale mentions the debottarnama and shows that Bhabhichhan expressly took the two khatas, Nos. 343 and 393, as the landlord''s so called khudkasht.

The next documents referred to on behalf of the plaintiff are two road-cess returns, Exs. 4 and 4(a), submitted by Bhabhichhan in April 1914, in which khatas 343 and 393 are shown as "bakasht kamat khudkasht". u/s 95, Cess Act, however such returns are not admissible as evidence in favour of the person submitting them. We then come to the collectorate batwara of 1919-22. The partition allotment papers show not only that the disputed lands of these khatas were allotted to the pattis of the plaintiff, but also, as the learned Subordinate Judge has observed, that "they were assessed with assets as for khudkasht lands and that, at the instance of Mangani Singh whose raibandi was accepted as the basis for partition. "

As a matter of fact, Mangani''s raibandi was the basis in the suit relating to tauzi No. 9032 but not in that relating to tauzi Mo. 9034; but even so, it is not open to Mangani or to the appellant standing in his shoes to question the character of the lands as partible lands representing assets to the proprietor, or to claim that they were debottar lands so as to be incapable of bringing any profit to the proprietor. Stress has been laid on behalf of the appellant on the fact that in these papers Thakur Lachmi Narayan''s name appears against the plots, but this is the usual way of specifying plots in such papers and does not by any means indicate that the plots were then treated as debottar. Indeed, if the lands had been so treated, there could have been no rent and no assets to divide among the cosharers zamindars and the lands would not have been assessed at all.

As against these documents, appellant relies on the entry of debottar in the record-of-rights and the treatment of these khatas (and also of khata No. 392) in Register 5 and its interpretation by the Revenue authorities in the certificate proceedings. The remarks of debottar in the record-of rights are not supported by any reference to any deed of dedication, as would presumably have been done, had there been any such; nor does the appellant in fact pretend that there was any. There is also no evidence of dedication by the ceremonies of Sankalpa and Samarpana--see Deo Saran Bharthi and Another Vs. Deoki Bharthi and Another, . Gulalnarain, D.W. 14, speaks of an old dedication of raiyati lands by the family, but this story is not what is set up in para. 7 of the written statements and is practically abandoned by him in his cross-examination when he says:

There was a partition between the two eight annas pattis of Hirdanbigha Babus. We did not own the disputed lands at that time. We did not own the disputed lands when we purchased tauzi 1340 and 1342 in Paijuna. I cannot say if the disputed lands wore purchased orally or by registered documents.

The partition referred to in this passage is that evidenced by a taksimnama of 1868, Ex. 16 relating to other pattis than those in dispute. It has been suggested for the appellant that Gulal''s statement that they did not "own" the disputed lands at the times mentioned is consistent with the lands having been already dedicated to the Thakur. I am unable to accept this suggestion. The raiyati right of the previous owner would of course cease on the dedication; after the dedication no question could arise whether the family owned the lands at the later times indicated, and yet such questions were put and answered. The plain inference therefore is that the witness was really questioned and spoke in this passage about the alleged acquisition of raiyati holdings by the landlords before dedication to the Thakur.

This story of Gulal''s is further unsupported by any evidence worth the name, though much evidence would easily have been forth coming if the story had been true, for, according to Gulal, a note used to be made in their zamindari papers that the rent of the lands was so much but that it was remitted. The recitals in the debottarnama are prima facie supported by the circumstances and do not seem to be untrue. Bhabhichhan had already obtained a mortgage decree but had still to obtain possession; the family was so heavily involved that it was shortly to part with almost all its property in payment of its debt, but it was still in a position easily to procure in the Record of Rights entries of debottar as there was nobody to oppose them.

The Thakur''s holding, such as it was, was thus, to say the least, precarious; the reservation of the lands for the Thakur at the time of the Survey and Settlement, as mentioned in Ex. 28, was in substance an alienation which would hardly, having regard to the doctrine of lis pendens, operate against the mortgagee with his mortgage decree already obtained. Some evidence has been produced on behalf of the appellant regarding the possession of the Thakur, which has not impressed the lower Court at all and which will be dealt with later.

The exchange of a permanent dedication of other property for the temporary reservation of the lands in suit was not unreal; Gulal''s allegation that the Bihta property remained in Ramchandra''s possession is contradicted by the D register of the mauza, Ex. 35(a) which (it was pointed out at the hearing) has not been correctly printed in the Paper Book at pages 711--712. Nor has it been seriously urged for the appellant that the debottarnama was only a sham; Sir Sultan Ahmad''s real contention was that there was an earlier dedication of an irrevocable character and he conceded that the appellant was bound to fail unless the Court found that there had been an absolute dedication.

In my opinion, the debottarnama goes very far to rebut the presumption of correctness attaching to the debottar entries in the record-of-rights, and shows how there was really no absolute dedication of these lands to the Thakur. Coming now to Register V this public document, judging by the ordinary course of business, must have been preceded by and been based on the Valuation Statements of the tauzis, of which one, Exhibit AF, relating to tauzi No. 9034, has been produced. This statement purports to be made u/s 34, Cess Act, and shows khatas Nos. 392 and 393 as the rent-free holdings of the Thakur with an annual value of Rs. 170-0-0 and Rs. 188-0-0 respectively, and the last column refers to separate cases which must have been opened in the cess valuation proceedings.

The care with which the work was done appears from such facts as that khata No. 343 is shown in the register as included in tauzi No. 9034, a mistake for tauzi No. 9032, and khata No. 393 is shown as held by the Thakur under the management of Kishun Dutt Jha, though the record-of-rights showed that (like khata No. 343) it was, under the management of Jugal Jha, Kishun Dutt being the manager of khata No. 392 in the share of the Bhagwat Prasad branch of the Hirdanbigha Babus. The year when this register was prepared can be inferred from the circumstance that the date of the first instalment of cess given there is 7th June, 1916, though, incidentally, the date of the second instalment which is shown as 12th January, 1916, is obviously wrong.

Under the orders of the Cess Deputy Collector, dated 3rd October, 1917, in Certificate case No. 24 of 1917-18, as noted in the register, the name of Bhabhichhan Singh was entered in the place of the Thakur as the holder of all the three khatas which had become rent-free tenures for cess purposes. The printed Exhibits W (1) and W (2) at pages 715 and 717 of the Paper Book, like Exhibit W at page 713 referring to khata No. 392, are not accurate, as was ascertained during the hearing of the appeals by referring to the Exhibits in the record which show beyond dispute that Bhabhichhan replaced the holder of the lands in column 4 and not merely the manager of the Thakur. It has been urged by Sir Sultan Ahmad that in entering the lands in Register V the authorities concerned must have made enquiries and satisfied themselves about the debottar character of the land.

But the authorities were only concerned with the realization of cess, and in the ordinary course they proceeded on the entries in the record-of-rights and incidentally made careless mistakes in copying them. There is nothing to show what enquiries the Cess Deputy Collector made before ordering in the certificate case of 1917-18 that the holder''s name be replaced by that of Bhabhichhan; but as Cess Deputy Collector he was not concerned with the debottar or secular character of the lands and the possibility or otherwise of converting debottar lands into secular--it was sufficient for him that the lands remained "rent-free tenures," with some holder or other ready to pay cess.

Apart from such indifference, there is no conceivable explanation of how Bhabhichhan was entered in place of the Thakur not only in respect of the two khatas lying within the zamindari shares purchased by him, but also in respect of khata No. 392; the learned Advocates on both sides have not been able to suggest any other explanation, and Gulalnarain who has attempted to make out that khata No. 392 (like the other khatas belonging to Ramchandra''s branch) was made over to Bhabichhan for management on behalf of the Thakur--a story which will be scrutinized later---says nothing that will explain why Bhabhichhan should get himself recorded in place of the Thakur in respect of this khata. It does not appear that the Jhas originally shown as managers opposed the entry of Bhabhichhan''s name as the holder, and this again is not inconsistent with the reality of Ex. 28 and the incorrectness of the record-of-rights if it was intended to show that the lands were absolute debottar.

Register V further shows that in 1918 orders were passed by the Cess Deputy Collector in three certificate cases, under which Mangani''s name replaced that of his father Bhabhichhan; no reference was made to Mangani''s relation to the Thakur, if any. Coming now to the certificates issued in 1922, Mangani Singh is shown in them, without any reference to the Thakur at all, as the certificate-debtor, and so also in the sale certificates and the writs of delivery of possession in the three certificate cases relating to the three khatas. After the sales, the plaintiff applied u/s 29, Public Demands Recovery Act, for setting the sale aside. Applications under this section may be made by any person whose interests are affected by the sale on two grounds only (1) that notice was not served u/s 7 or (2) that there was a material irregularity in the certificate proceedings or in publishing or conducting the sale. The Revenue authorities held that neither of these grounds was made out, and this was really sufficient for their purpose.

The Certificate Officer, however, also held that the record-of-rights must prevail over the batwara raibandis which as he considered,

cannot create any right or title in favour of the objector against the recorded tenants beyond (sic) their knowledge and consent.

He attached no weight to the batwara papers, and he would not believe "a few witnesses who stated that the objector had got possession over the lands in the batwara". A finding of debottar in such circumstances is plainly of little value. Mr. Owen, the officiating Collector of Patna, who heard appeals against the orders of the Certificate Officer dismissing the plaintiff''s applications for setting the sales aside, does not seem to have at all clearly appreciated what it was that he was called upon to decide concerning the plaintiff objector''s status u/s 29 of the Act, but observes categorically, if also somewhat cryptically, that

the land sold is rent free land dedicated to the worship of Thakurji, and the appellant has conspicuously failed to show that this discrepancy of the land (viz., tauzi 9084 instead of No. 9032) can possibly cover (?) a small fraction of khudkasht lands which he alleges that he obtained by a mortgage from one of the previous proprietors.

Lands may be held free of rent, without being debottar, and the register was a register of rent free lands and not merely of debottar. There was a further appeal to the Commissioner, and Mr. Heycock who heard it very clearly states the position in the following words:--

If the petitioner is to succeed, it would be necessary for him to prove and for this Court to find that these rent free tenures are not rent free tenures and are not liable to separate assessment to cess. In an objection to the sale the petitioner is not entitled to raise this issue, viz., that the rent free tenures as recorded in Register V are not rent free tenures at all, but part of the mal lands. It seems to me that it was the duty of the petitioner to have raised this issue, if he wished to raise it, at the time of the Survey and Settlement, or to have moved the Collector subsequently for the amendment of this Register V ... the point before the Court is not whether the Collectorate Register V is correct, but whether there are any valid objections to the sale....

This view was doubtless based on a ruling of the Board of Revenue, dated as long as the 27th June, 1885, which is now conveniently found summarised in the note u/s 37, Cess Act, in the Bihar and Orissa Cess Manual, 1927. It is plain that in these circumstances little weight can be attached to the observations of the Revenue authorities that the lands were debottar and--impliedly--continued to be so down to the date of the certificate proceedings. Instances of carelessness are found not only in Register V but also in the certificate proceedings. The bid-sheets in the certificate cases, which are found at pp. 644, 656 and 664 of the Paper Book give the area, the number in Register V and the khata number, correctly, and then add "Shri Thakur Lachhmi Narayan under management of Kishun Dutt Jha" for khata No. 392, of Jugal Jha for khata No. 343, and of "Mangalji son of Sukhdeoji" for khata No. 393.

This mention of the Thakur and his managers was contrary to Register V as it stood at that time. Nor is this all; the bid-sheets actually give khasra numbers and boundaries for four plots only in khata No. 392 and three plots only in each of the other two khatas, though they began correctly enough with the entire area of each khata and called it the "rent-free land of judgment-debtor Mangani Singh...." It may be that the Revenue authorities said nothing about such- carelessness and confusion, because any relief which they could give to the plaintiff was limited to the two grounds mentioned in Section 29 of the Act. But that does not add to the weight that their incidental observations should carry in the civil courts.

Sir Sultan Ahmed does not dispute the proposition that after the debottarnama and the deed of sale of October, 1910, Bhabhichhan must have come into direct possession of khatas No. 343 and No. 393, for there was nobody to oppose him. But he contends that Bhabhichhan allowed the lands to be entered in Register V in the name of the Thakur and thus admitted their debottar character. I see no substance in the contention. Bhabhichhan''s jamabandi was not accepted by the officer in charge of Cess Revaluation--see Ex. 25--but it was not long before he got his name entered in Register V in place of the Thakur, and this in his personal character without any reference to the Thakur at all.

It is convenient now to turn to the third khata, No. 392, which originally lay in Bhagwat Prasad''s share and passed to the plaintiff on his foreclosure of the English mortgage. Plaintiff''s case was that the entry of debottar in the record-of-rights was fictitious and that the lands of this khata had been in the direct possession and enjoyment of his predecessors in title and came into his direct possession upon the foreclosure of the mortgage. It appears that in 1901 a partition suit was brought in the civil Court by one of the three branches into which Bhagwat Prasad''s family was divided, and that in 1902 there was a preliminary decree on a compromise, according to which the shares of the three branches were defined and properties placed in the hands of a receiver for paying off the debts of the family, before a final decree was to be passed. The plaintiff''s mortgage was executed jointly by the family of the receiver, and he has thus been able to produce a large mass of zamindary papers from 1899-1900 onwards, kept at first by the family and then by the receiver and finally by his own staff, to show that the lands could not have been debottar, but were held by the proprietors as their bakasht from long before the Survey and Settlement and continued to be so held down to plaintiff''s dispossession by the appellant at the end of November, 1924. The papers of the collectorate batwara of 1919-1922 also show that (like khata No. 393) the lands of this khata No. 392 were divided among the three applicants for the partition of this tauzi as lands in the khas possession of the proprietors.

As against this documentary evidence, the appellant relies on the record-of-rights, Register 5, and the certificate proceedings.

I have already discussed Register 5 and the certificate proceedings in detail when dealing with the other khatas. Suffice it to say that they do not present any special feature in respect of khata No. 392, except that Bhabichhan, the purchaser of the other two khatas, was allowed by the Cess Deputy Collector to get himself entered as the holder of this khata as well and thus obtain the privilege of paying cess for it. Reference was also made on behalf of the plaintiff respondent to Ex. 15, a deed executed by Jadunath Jha, a defendant and a son of the Kishun Dutt Jha who was named in the record-of-rights as the manager on behalf of the Thakur, on 28th February, 1920, in favour of the plaintiff.

This deed purports to have been executed in consultation with members of the family of Bhagwat Prasad Singh, and declares that though the debottar entries in the record-of-rights were "advisedly" procured, the lands of khata No. 392 were never in the possession of the Thakur or of the executant or his father as the manager of the idol and that the Thakur and his manager "have got no sort of interest at all in the land for which this deed of relinquishment of claim is executed". A deed of this kind procured from the manager, whether for some consideration or for none, cannot, of course, affect the debottar character (if any) of the land; it may, however, affect the title of the Thakur, and extinguish it under the law of limitation--an aspect of the matter which will be considered subsequently.

As regards the zamindari papers produced on behalf of the plaintiff, Sir Sultan Ahmad has contended that u/s 34 of the Evidence Act they can only be corroborative evidence and must be regarded as insufficient by themselves to prove the transactions recorded in them if creating or pointing to the liabilities of others. The law accepted in this Court is, however, found in Charitar Rai v. Kailash Bihari [1918] 3 PLJ 306, in which it was laid down that such papers can be used as independent evidence, provided they are brought within Section 32(2), Evidence Act by showing that the persons who prepared them are dead or cannot be found etc., but that the weight to be attached to them must depend on the circumstances.

The oldest of these account papers are admitted by Gulal to be in the handwriting of Gajadhar Lal, the old patwari of the mauza. There is no dispute that Gajadhar is dead; the papers show that he was replaced by his son Dwarka Lal in 1906. Gulal admits that they made over to the receiver their old collection papers. Other important paper bear the signature or facsimiles of signatures or seals of one or other receiver, and in some cases impressions of the seal of the court of the Subordinate Judge where the partition suit was dealt with. The principal receiver concerned is Babu Mathura Nath Sinha, and the statement of Birendra Krishna Neogi, plaintiff''s manager and first witness, that Mathura Babu was seriously ill during the hearing of the suits does not seem to have been challenged.

Another person whose writing appears in the papers is Girinda Kumar Ghose who was an assistant to the receiver, and plaintiff was able to show to the apparent satisfaction of the lower court that this Girin Babu, who was employed as the manager of a distant estate in the district of Murshidabad at the time of the trial, and for whom the plaintiff had previously taken out a summons, was unable to attend the court in time, and thus came within Section 32, Evidence Act. (His Lordship then discussed other documentary evidence and oral evidence and proceeded.) It seems to me clear from the entire evidence in the case that in spite of the entries of debottar in the record-of-rights it they import a real and absolute dedication, the three disputed khatas were not absolutely dedicated to the Thakur, or even if they were, that they were not actually held in any other way than as the landlord''s bakasht, in the case of khatas 343 and 393 from October, 1910, to November, 1924, and in the case of khata No. 392 from 1905 at least to November, 1924.

The record-of-rights describes the land as debottar without reference to any deed of dedication; and as observed in Ramchandra Mukherjee v. Ranjit Singh [1900] 27 Cal 242:

In dealing with the question whether an endowment is real or nominal only, the manner in which the dedicated property is held or enjoyed is the most important point for consideration.... It is true, as has been pointed out by the Privy Council in Juggut Moheenee Dossee v. Sokhee Monee Dossee [1871] 14 MIA 289 that a mere abuse of trust by the trustee for the time being cannot affect the validity of an endowment where there is no question about its being a real and valid endowment originally; but when the question is whether the endowment is real or fictitious, the mode of dealing with it by its donors and successors must be an important matter for consideration.

Applying this principle, the evidence before us would in my opinion justify the conclusion that the endowment (so far as one is indicated by the entry of debottar in the record-of-rights) was fictitious and not real; the Bhita endowment is another matter altogether. The entry by itself does not constitute a valid dedication, and neither before nor after the entry do any of the lands appear to have been used for the purposes of the Thakur.

The evidence also leads to the conclusion that assuming that the Thakur did at the time of the record-of-rights have a raiyati interest in the lands, that interest became barred and extinguished under the special limitation provided by the Bengal Tenancy Act. Article 3, Schedule 3 of the Act prescribes two years from the date of dispossession as the period of limitation for a suit to recover possession of land claimed by the plaintiff as a raiyat; and it has been held in Nandkumar Dubey v. Ajodhya Sahu [1911] 11 IC 465 that, even if Section 28 of the Limitation Act be not directly applicable to suits under that article, an occupancy right, if barred by this special limitation of two years must be treated as extinguished. Bhabhichhan was clearly in possession of khatas 343 and 393 for more than two-years from his purchase in October, 1910, and the plaintiff, of khata 392 for more than two years from November, 1911.

It is again clear that the plaintiff was in possession of the disputed lands from the Collector''s matter-of-course batwara delivery of possession, on 19th May, 1922, up to appellant''s deliveries of possession in the certificate proceedings on the 30th November, 1924. Sir Sultan Ahmad has endeavoured to meet this by arguing that there is a difference between dispossession and adverse possession, and that Article 3, Schedule III, Bengal Tenancy Act, contemplates not adverse possession but dispossession, and that, by the landlord as such. He cites two cases in support. One is the case of Sonatan Sheikh v. Chaku Sheikh [1909] 3 IC 398, where a person entered into possession of an occupancy holding with the permission of the tenant and subsequently claimed a title in himself and obtained recognition from the landlord, and it was held that this was a case of adverse possession and not of dispossession by the landlord as such.

I do not think that this case is of any assistance at all to the appellant. Bhabhichhan came into possession, as a landlord, of the lands purchased from the family of Ramchandra, and his possession meant the dispossession of the raiyat, viz., the Thakur, by the landlord as such. That the dispossession was in denial of the debottar right will doubtless constitute Bhabhichhan''s possession adverse to the idol, but the case Sonatan Sheikh [1909] 3 IC 398 is not an authority for the proposition--nor can such a proposition be maintained--that, the--dispossession of one person by another does not generally imply as a sequence possession by the latter adverse to the former. Dispossession merely means exclusion from possession with out the consent of the person concerned, and in the case referred to, the old tenant had himself permitted another to come and the landlord merely recognized the latter as a tenant after he had asserted a title hostile to the former i.e., after the old tenant''s possession even through another had come to an end.

The other case cited by Sir Sultan Ahmad is Gajadhar Rai Vs. Ram Charan Gope and Others, , a Full Bench decision of this High Court. This case, however, only decides that Article 3, Schedule 3, Bengal Tenancy Act, does not apply to a case of dispossession by a landlord when he only takes possession of holding as auction-purchaser in execution of a rent decree against the tenant. It does not seem to me that this has any bearing on cases like the present where the landlord came into possession not as the auction-purchaser of the holding but as the purchaser of the interest of the landlord.

Sir Sultan Ahmad has also urged that if the land was debottar at the time of the record-of-rights, it was not competent either to Ramchandra''s family, or to Jugal Jha who was in fact recorded as the idol''s manager (notwithstanding the claim in the debottarnama that Ramchandra''s family were "the shebait and manager"), or to both of them to change the debottar character of the land or to exchange the land for the other property dedicated to Ramchandra''s family under the debottarnama.

But, the rule that a founder of his descendants cannot revoke an endowment applies to endowments which have been validly created. (Trevelyan''s Hindu Law, Third Edition, page 598); and

to be valid, an endowment must be created in perpetuity for religious or charitable purposes: (loc. cit. p. 591).

In the present cases, if the recitals in the debottarnama be true (as I consider they were), there was no permanent or absolute dedication of the lands at all, but only "temporary arrangement" without a "complete and absolute" transfer. This was therefore, not a case of revoking a permanent, absolute dedication, but at the most--if there was any real "arrangement" even of a temporary kind (anything beyond a mere paper entry, anything put into effect by appropriating the income of any period, however, short, to the idol, of which I see no indication) at the time of the Survey and Settlement--of replacing a temporary reservation of some property by the permanent dedication of another and better, safer property for the services of the family deity.

It was undoubtedly the bounden duty of shebait or the manager,--whoever he may have been out of the family of donors and the recorded manager Jugal Jha, it could not have been any other person--to preserve the estate of the Thakur as far as possible, but where, as in the present cases, preservation was manifestly impossible except by an exchange, it is difficult to see why the exchange should not be within his competence, provided of course that it was a real and genuine exchange, not a mere sham or a mere device to get over absolute dedication (as the appellant has not even attempted to show).

The entries in the batwara papers only bind the cosharer zamindars who were parties to the proceedings, and do not create any estoppel against any tenant--see Baldeo Sahay v. Brajanandan Sahay [1917] 43 IC 395 --unless these tenants were co-sharer zamindars themselves and in that capacity were parties to the proceedings. The Thakur was not a co-sharer zamindar: Mangani Singh was, but he could not have been a party to the batwara in the capacity of a shebait or manager of the Thakur, if he ever had that capacity.

The batwara papers therefore will not bind the Thakur or prevent him from setting up his raiyati right against the plaintiff as landlord in a proper suit. Does it follow that the Thakur''s title can be set up as a defence in these suits? I think not In the first place, the Thakur''s interest is plainly barred and extinguished by time on the facts already found. Sir Sultan Ahmad has urged that limitation cannot arise in the cases because the properties were vested in trust and there is no limitation for actions based on breaches of trust. One answer to this is that even if there was any temporary (or for the matter of that, any permanent) dedication, the properties were not vested in the manager, and it is well settled that properties vested in an idol may be lost by the adverse possession of another and that the possession of an out-and-out purchaser from the manager of an idol will be adverse to the idol even if the sale be effected for an unauthorized purpose--see Damodar Das v. Lakhan Das [1910] 37 Cal 885, Subhaiya Panduram v. Muhammad Mustafa AIR 1923 PC 175 and Raja Manindra Narain Roy Shebait of Idol Krishna Ray Jiu Vs. Executors to the Estate of late Bhuban Chandra Bandopadhyay and Others, which with many other cases were discussed by Fazl Ali, J., in Naurangi Lal and Others Vs. Ram Charan Das, .

Again, it seems to me that the appellant is not entitled to set up the right of a third party, the Thakur, unless he claims tinder it and makes good that claim. This proposition has been recognized, and the plaintiff in an action of ejectment is allowed to succeed on the strength of his prior possession only, in various cases in this Court, out of which it is sufficient to mention Chandi Misser v. Narsingh Rai [1917] 39 IC 26, Sahodra Kuer v. Gobardhan Tewari [1917] 2 Pat LJ 280 , Bodha Ganderi Vs. Ashloke Singh and Others, and Ranjit Singh and Others Vs. Jhori Singh, . Sir Sultan Ahmad has endeavoured to meet this in two ways. He refers in the first place to Pollock and Wright''s classical Essay on Possession in the Common Law, where it is said at page 99 that:

it must be remembered that the title conferred by possession is (apart from statute) a title only against wrong doers. A person who is lawfully dispossessed has no subsequent remedy against a third person not claiming through a wrong doer.

It is urged that the appellant is not a wrong-doer as he was put into possession by the Certificate authorities. I do not think that this last circumstance is at all decisive. The Certificate authorities could not have validly put the appellant into possession of the lands of anybody except their certificate debtor, viz., Mangani Singh, and it is not appellant''s case that the lands were the property of Mangani Singh. Sir Sultan Ahmad, however, contends that what the appellant purchased was the interest of the Thakur, and that this was the conclusion of the Certificate authorities. In my opinion, Mr. Heycock decided no more than that neither of the grounds required by Section 29, Public Demands Recovery Act, was made out and that the plaintiff was not entitled in those proceedings to go behind the Record of Rights and Register V.I consider further that even if Mr. Heycock or any subordinate Certificate authority had definitely found that the Thakur''s interest had been purchased by the appellant, that would not suffice to settle the matter for the purposes of the present suits and appeals. The certificates, the sale-proclamations and the writs of delivery of possession, which are in evidence, mention Mangani as the certificate-debtor without any reference to the Thakur; and Register V itself, on the strength of which the certificates were issued, does not show that Mangani merely managed the lands on behalf of the Thakur.

What the appellant, therefore, took at the certificate sales was only the personal interest of Mangani, and this is all that the Certificate authorities were empowered to put him into possession of He has, therefore, not been lawfully put into possession of the Thakur''s lands or of the plaintiff''s but only of Mangani''s lands, nor can he on that basis set up the Thakur''s title. As against the plaintiff, he is in wrongful possession; and in respect of the Thakur he is in no better position.

The second point that Sir Sultan Ahmad has endeavoured to make is that the plaintiff''s case being based on a complete denial of the debottar, it is not open to the Court to give him relief on the footing that, though there was a debottar title, it has been barred and extinguished by time. In support of this contention, he has cited Krishna Charan v. Protap Chunder [1881] Cal 560. It was held in that case that where a specific title has been alleged but not proved, and the plaintiff endeavours to succeed in the first court or in the court of appeal on a title by twelve years'' adverse possession, he must be prepared to show that this other title by twelve years'' adverse possession was raised in the court of first instance with sufficient clearness to enable his adversary to understand that he claimed to succeed as well by twelve years'' adverse possession as by the specific title alleged.

The facts of that case are, however, easily distinguishable from the facts of the present cases. The plaintiff in the present cases claimed to be in direct possession of the lands as the bakasht lands of the landlord, and said that the debottar entries in the Record of Rights were collusive and fictitious. He has certainly been able clearly to establish his predecessors'' and his own possession as a landlord. As regards the debottar he merely had to disprove it in order to rebut the presumption of correctness attaching to the entries in the record-of-rights. But the debottar conflicted with his title and was no part of it. He had to prove the negative, and for this purpose it was prima facie sufficient for him to show that the record-of-rights does not refer to any debottar grant and that for a number of years the properties have been held enjoyed as (sic).

When this was done, it became necessary for the appellant, if he wished to rely on the debottar to establish it and further to show that the interest of the Thakur was subsisting at the time of his auction purchases. The decision in Krishna Charan v. Protap Chunder [1881] Cal 560 is therefore of no assistance to the appellant. Another ingenious argument advanced is that the possession of the plaintiff or his predecessors was only of a permissive character since the managers concerned executed the debottarnama of 1910 and the deed of relinquishment of 1920. But the debottarnama cannot prevent the possession under the deed of sale from being adverse to the Thakur and from constituting the dispossession of the Thakur for the purposes of the Schedule to the Bengal Tenancy Act.

The obtaining of the deed of relinquishment was only the averting of a possible attack on a title already acquired. And in any case the appellant is not, as I have already shown, entitled to set up the Thakur''s right against the plaintiff. In my opinion the lower Court was right in arriving at the conclusion that the entries of debottar in the Record of Rights had been sufficiently rebutted and that the plaintiff had a title to the land in dispute as his bakasht lands.

The only other matter urged in the appeals is the question of whether or not the appellant is a benamidar of Mangani Singh.

There was an issue framed on this point in the lower Court and answered against the appellant; but it was only material on the question of mesne profits and the question of any equitable relief to which the plaintiff might have been entitled on the ground of fraud committed by Mangani Singh in defaulting intentionally, thus bringing about sales for arrears of cess and himself buying the property in the name of another. Mesne profits have, however been awarded by the lower Court against Mangani as well as the appellant, and Mangani has not appealed, though he is much the more substantial man of the two. It is, further, appellant''s own case that he came into possession on his own account; it follows that on the title being found against him, he cannot escape liability to pay mesne profits.

AS regards the question of relief on the ground of fraud, it is desirable to observe that the remark of the lower Court that a purchase by a certificate-debtor without the Court''s permission "can be completely ignored" is erroneous--see Masudan Lal Vs. Ram Gulam Sahu and Others, . On the finding that the lands in suit are not debottar, the question of benami seems to be really immaterial. The finding of the lower Court that the appellant is a benamidar has however been vigorously assailed on his behalf. It is a commonplace that in cases of benami transactions direct evidence can hardly be expected but that suspicion is not proof. One important part of the circumstantial evidence is the position, actings and omissions of Mangani Singh. Prior to the batwara, he was in possession of the whole of khata No. 343 with an area of 56.15 acres, but as a result of the batwara this extensive area passed from him to the plaintiff.

The arrears of cess for which certificates were issued in respect of the three khatas amounted to about Rs. 44 only, while the assets of the khatas appear from the batwara a papers to be Rs. 955 which, capitalized at sixteen years'' purchase, gives over Rs. 15,000 as the value of the lands.

Even after the batwara Mangani had over 28 bighas, not an inconsiderable area, in khatas 392 and 303. That he is a wealthy man is common ground, and that he was aware of the certificates which were issued within three months of the batwara dakhaldehaniz is established on the appellant''s case by the fact that on 15th January 1923, the date originally fixed for the certificate sales, one Gursahai, said by the defence to be Mangani''s servant, came and applied to the Certificate Officer for a day''s time to deposit the arrears of cess.

Yet no deposit was made, and sales were allowed to take place in execution of the certificates. Gulal claims to have asked Mangani ten or fifteen days after the auctions why he had allowed the debottar lands to be sold, and to have received the reply that the auction sales had taken place by negligence. If Gulal be right about the time when he made the enquiry, Mangani could have had the sales set aside u/s 28, Public Demands Recovery Act, by depositing the money for which the sale proclamations had issued and ten percent, of the purchase-money for payment to the purchaser. The omission to do so must have been deliberate. Mangani though impleaded, did not appear and has not even appealed against the decrees now being dealt with. It has been urged that while the certificates were issued for the arrears of the January and June instalments, Mangani had ceased to be the holder of the lands on the batwara deliveries of possession in May and was therefore not liable for the June instalment. This contention loses a good deal of its force by reason of the facts that at the batwara the lands were not treated as rent-free tenures under the Cess Act, but as bakasht lands, and that the plaintiff had never been entered in Register V at all as the holder of any of those so called rent-free tenures. Even before the batwara Mangani had got himself entered in Register V not as the manager of the Thakur but in his own personal capacity.

His failure, therefore, to avert the sale, even though (according to the applicant) he sent his own servant Gursahai to deposit the moneys or to get them set aside after he spoke to Gulal of negligence, is remarkable. It has been urged for the appellant that Mangani may have got back the 28 bighas that were allotted to him at the batwara, by a private arrangement, with the auction-purchaser, but that this would be no indication of benami or previous collusion. The lands were however purchased by the appellant who does not say that he has given back any of them to Mangani. We have on the contrary his grandson Tuka speaking of enmity and litigation with Mangani.

If the enmity be a fact, is it at all likely that Mangani would in the circumstances have failed, to avert the sales or get them set aside? (His Lordship then discussed the evidence and concluded that the appellant was a benamidar of Mangani Singh and proceeded). I would therefore dismiss these appeals with costs.

Mohamad Noor, J.

I agree.