Deonath Misra vs Amar Singh

Jwala Prasad, J.—This appeal arises out of a suit brought by the plaintiffs to recover possession of the land in dispute from the defendants, on the ground that the said land is the plaintiffs'' private or zerait land and that the lease on the basis of which the defendants held the land has expired. The defendants-respondents on the other hand claim to hold the land as occupancy tenants thereof. It is not disputed that the defendants were inducted on the land by virtue of two leases, first, dated the 15th August 1904, which expired in 1314 and the second, dated 2nd September 1912, which expired in 1322. Both the leases were for three years. The plaintiffs'' case is that the land was held khas in the interval, i.e., between 1315 to 1319. The present suit was instituted after the expiry of the second lease. The Courts below have held and it is not disputed in this Court that the defendants are settled raiyats in the village and their status has also been so recorded in the survey papers. The Courts below have also held that the lands in dispute are not the zerait land of the plaintiffs and that hence the defendants have acquired occupancy rights in the said lands, although they were brought on the laud by means of a temporary lease. The finding of the Court below regarding the character of the land as being not zerait has been disputed by the appellants in this Court. The contention rests upon the description of the land in the kabuliyat as khudkasht land. The oral evidence of the plaintiffs as to the khudkasht and the zerait being synonymous has been disbelieved. No authority has been shown as to khudkasht necessarily meaning zerait or private lands of the proprietor. Such a description, namely, khudkasht in the lease referred to in Ajodhya Prosad Singh and Others Vs. Ram Golam Singh and Another, , was not accepted as sufficient to mean that the land was the zerait land. The word ''khudkasht'' does not occur in section 116 of the Bengal Tenancy Act, where the words expressly mentioned are khamar, nij, nij jote zerait, sir or khamat, as denoting the proprietor''s private lands. It cannot, therefore, be accepted without any express authority that the word khudkasht necessarily means ''zerait''. This contention of the learned Vakil for the appellants, therefore, fails.

The survey record of right has entered the land as the kayemi or occupancy holding of the defendants and the Courts below have concurred in the finding that the entry is correct. The only ground upon which the decree of the Court below is assailed is that the land in dispute forms part of the jagir lands of the plaintiffs and as such it was a service tenure and hence u/s 181 the defendants could not acquire an occupancy right in this land. It is true that the land in the kabuliyat has been described as the "jagir khudkasht land." The plaintiffs have also described it at one place as their exclusive jagirdari land and at another place as khudkasht jagir land. It must, therefore, be accepted that the land was known as jagir khudkasht land of the plaintiffs, but there is nothing to show on the record that this was a service tenure as mentioned in section 181. Hence the section has no application.

It is not asserted that the land was a ghatwali tenure. A jagir tenure may be a service tenure or may be an ordinary tenure or holding. Appendix IV, which contains a list of tenures or holdings, attached to Finucane and Amir Ali''s Bengal Tenancy Act, page 868. Apart from what has been said in that appendix, personally I am of opinion that the jagir tenure is not necessarily a service tenure. This was not the point taken in the Courts below and as a matter of fact this is not the basis of the claim of the plaintiffs. Although the land is described as jagir in paragraph 1 of the plaint it was meant nothing more than a mere description of the land. This was not the ground upon which the claim was based. Having failed upon the principal grounds taken in the grounds of appeal, the learned Vakil with admirable ingenuity has tried to apply section 181 on account of the mention of the word ''jagir'' in the lease and in the pleadings. He certainly would have been entitled to win the case, provided the word ''jagir'' was mentioned in section 18 of the Bengal Tenancy Act or there was a clear authority showing that the general acceptance of the word ''jagir'' was that it was a service tenure.

For the reasons given above the appeal must fail. The appeal is, therefore, dismissed with costs.