Chintamoni Rout and Another vs Sriram Chandra Kar

James, J.—This appeal arises out of a suit which was instituted by a landlord for ejectment of the purchasers of a chandna tenancy on the ground that it was not transferable without the landlord''s consent, and that the present occupiers were therefore in the position of trespassers occupying property abandoned by the lawful occupants. The suit was decreed by the Munsif of Balasore whose decision was affirmed on appeal by the Additional Subordinate Judge.

The learned Subordinate Judge, remarked in his judgment that chandnadars were tenants-at-will, and that occupancy holdings were not transferable without the landlord''s consent under the Orissa Tenancy Act.

The learned Advocate for the appellants criticizes with some justification these dicta. For the first the learned Subordinate Judge relied on an unreported decision of this Court which did not in itself afford justification for the view which he entertained, a view which is inconsistent with the provisions of Sections 74 and 232(1)(c), Orissa Tenancy Act. A chandnadar whose interest has been recorded in the Record of-Rights is not a mere tenant-at-will liable to ejectment on a mere notice to quit from his landlord. And occupancy rights are of course transferable in Orissa, subject to certain conditions, since the passing of the Orissa Tenancy Act.

But the learned Advocate is on more difficult ground when he attacks the ultimate decision of the learned Subordinate Judge which is to the effect that the rights of a chandnadar who is not a raiyat are not transferable without the consent of the landlord unless there is local usage to the contrary, and that in the present case no such local usage has been proved. u/s 236, Orissa Tenancy Act, two classes of chandnadars are defined. The first is the chandnadar who is a raiyat holding his homestead otherwise than as part of his holding as a raiyat, in which case the incidents of his tenancy are regulated, generally speaking, by the provisions of the Act applicable to land held by a raiyat.

The second class is that of the ordinary chandnadar who is not a raiyat. The incidents of his tenancy are regulated by local custom or usage, and his rent is liable to reassessment on each revision of a land revenue settlement.

The learned Advocate for the appellants suggests that the permanency which is given to the tenancy of the chandnadar by the provisions of sub Section 2, Section 236 and by the other provisions of the Act specifying the conditions on which he may be ejected, necessarily carries with it the right of transferring his holding without the consent of his landlord, but no such right can be presumed as one of the incidents of a tenancy in an agricultural district in the absence of local custom or usage sanctioning it.

The right to transfer an occupancy holding subject to the payment of a certain proportion of the purchase money to the landlord, was expressly conferred on occupancy raiyats by the Orissa Tenancy Act but there is nothing in the Act conferring such a right on chandnadars. The onus lies on the transferee to prove the existence of a local custom or usage by which the tenancy is transferable. The evidence on this point has been discussed in some detail by the learned Munsif, who finds that in every instance of transfer proved, a nazarana of a smaller or larger amount was taken by the landlords.

In one instance the amount was very large which, as the learned Munsif remarks with justification, is inconsistent with the existence of an established usage by which such tenancies are transferable without the landlord''s consent. The learned Munsif on this evidence came to the conclusion that the defendant had not proved that any usage of transferability existed, and on this point his finding was affirmed by the Subordinate Judge. It is suggested on behalf of the appellants that this finding is not justified by the evidence, but it does not appear that on the evidence before the learned Munsif, he could have come to any other conclusion.

The learned Advocate for the appellants suggests that as some degree of permanency is given to chandnadars by the provisions of the Orissa Tenancy Act, the landlord cannot eject a chandnadar otherwise than under some definite provision contained in the Act. But in this suit the landlord is not ejecting the chandnadar, but the purchasers who are trespassers. The ground of the suit is that the chandnadar has abandoned his tenancy, and that since his tenancy was not transferable no tenancy now intervenes to prevent the landlord from re-entering into direct occupation of the land.

We accept the argument of the learned Advocate, that if a person who has acquired by purchase is described in the Record-of-Rights as a chandnadar, the onus is cast upon the person who attempts to eject him of proving local usage which rebuts the entry in the Record-of-Rights. He argued perfectly correctly that in those circumstances, the civil Court should require strong evidence to rebut the presumption of correctness attaching to the Record-of-Rights. But here the Record-of-Rights does not support the claim of the defendants. The original chandnadar is recorded, with a record of the purchase by the defendants; that is to say, the facts of possession are recorded in such a manner as to indicate that the Settlement Officer, obliged to record the actual facts of possession, considered that he could not record anything which might imply title in the transferee.

The judgement of the learned Subordinate Judge may be in some respects open to criticism, but the learned Advocate for the appellants has not been able to demonstrate any error of law in the actual ground upon which the final decision is placed. This appeal must be dismissed with costs.

Dhavle, J.

I agree.