Chethru Singh and Others vs Babuji Issar and Others

Macpherson, J.—The appellants are the defendants first-party. The suit was by the landlords to recover possession of a kaimi raiyati occupancy holding measuring 4 bighas 9 kathas and 12 dhurs of which the raiyats were the defendants second-party who had transferred on 29th September 1916 to the defendants first-party in spite of the fact that there was no custom of transferability without the sanction of the landlord which had not been secured.

The defence was that the holding which had been carved out of khata No. 137 by partition, consisted not only of the four naqdi plots Nos. 920, 986, 1080 and 1081 which made up the said 4 bighas 9 khatas and 12 dhurs, but also of plots 181 and 187, the former being a banswari extending to 1 khata 3 dhurs and shown in the Record-of-Rights as six bambo kothis in possession of the raiyat and as bhaoli nifs, and the latter being recorded as makan mai sahan and belagan. The learned Munsif held that the defendants were purchasers of a part of the holding only and accordingly the landlord could not recover possession. He went on to hold that though Raghunandan, brother of Harbans, one of the members of the defendants first-party, was a necessary party to the suit, the suit could not be thrown out on that ground.

In appeal the learned District Judge referring to the decision in Ramji Prasad v. Mohammad Anwar Ali Khan AIR 1917 Pat 142, held with regard to plot No. 187 that a belagan plot is not to be considered as part and parcel of a holding for which a naqdi rent is assessed and therefore plot No. 187 did not form part and parcel of the holding purchased by the defendants first-party. As regards plot No. 181, referring to the case of Dip Narayan Singh Vs. Bhim Mandal and Others, , he seems to have held

that, as the plaintiffs stated, the naqdi lands left over constituted a separate holding and therefore the original survey entry was immaterial,

relying upon an ex parte rent suit of 1924 and subsequent rent sale proclamation which described the area as 4 bighas 9 kathas and 12 dhurs as showing

that the holding came to be one of 4 bighas 9 kathas 12 dhurs, that is to say, it was made up of the plots recorded as naqdi in the original survey khatian.

He also referred to the recitals in the defendants'' own kabala which seem valueless for this purpose. His conclusion was that plot Nos. 181 and 187 did not form part of the holding at the time the purchase was made by the defendants first-party. He went on to find that plaintiffs were in possession of the homestead portion of plot No. 187 but not of the banswari plot No. 181 and decreed the plaintiffs'' suit. It may be observed that the Record of Rights was finally published in 1903, the partition by which the plots mentioned came into the takhta of these plaintiffs was in 1910, the sale was in 1916 and the ex parte rent suit was in 1924. In appeal it has been urged that the learned District Judge failed to observe, that the decision in Ramji Prasad v. Mohammad Anwar Ali Khan AIR 1917 Pat 142, upon which he relied, had been overruled by the Full Bench in Tilakdhari Singh v. Kuman Das AIR 193 Pat 201, decided more than a year previous to his decision.

It is settled law that the homestead belagan land may be a part of a raiyati holding of which the rent is either naqdi or bhaoli. The Full Bench also approved the decision in Dip Narayan Singh Vs. Bhim Mandal and Others, , where it was held that a khata number will never consist of more than one holding and the fact that a khata number consists of naqdi, bhaoli and belagan plots and that the total area of these plots is separately mentioned and the total cash rental of the naqdi plots is shown, does not create a separate holding as to each of these kinds of plots. In this case, in 1910, a portion of khata No. 137 consisting of belagan, bhaoli and naqdi was made over as a single whole to the zamindari of plaintiffs; it must then have been a single holding and it could not have been changed into separate holdings without the raiyats'' consent.

To my mind the decision under appeal is entirely vitiated by misconception of the law, and the question must be considered a fresh whether in September 1916, or at any subsequent date, the raiyat transferred the whole of the holding. Accordingly the appeal must be allowed and the suit remanded to the Court below for decision according to law. The whole appeal is open to the lower appellate Court. The appellants are entitled to their costs in this appeal.