Devan Manjhi and others vs Bhojal Sangahi and others

Macpherson, J.—This second appeal is preferred by the defendants in an ejectment suit which was dismissed by the Munsif, but decreed by the Officiating Additional District Judge of Monghyr.

The plaintiffs alleging that they had settled the land in suit with the Santa defendants for seven years from 1328 to 1335 F. by virtue of a kabuliat dated 16th January 1920, in terms of which all the interest of the defendants was to cease at the expiry of the term, prayed that the defendants be ejected. The defence substantially was that the kabuliat had been fraudulently obtained and that in any event the plaintiffs are tenure-holders and so entered in the record-of-rights finally published in 1908 and the defendants are the occupancy raiyats of the land and so entered in that record so that the terms of the kabuliyat as to the cessation of the interest of the defendants are void under S. 178, Ben. Ten. Act.

The Munsif upheld both contentions of the defendants, but in appeal the Officiating Additional District Judge relying upon the plaintiffs'' deed of grant (designated pata in accordance with kabuliat), Ex. 3, from the Darbhanga Raj which he read as a settlement for cultivation by the grantee himself, held that the presumption arising from the entries in the record-of-rights could not avail the defendants, who as under-raiyats could no acquire any occupancy rights in the absence of local custom which was not established. He held that in determining the status of the plaintiffs, if the inception of the tenancy was clear and the document creating the tenancy showed that it was raiyati, the subsequent conduct or dealings of the grantee need not be considered. He distinguished the decision in Debendra Nath Das v. Bibdhuendra Mansingh, 1918 P C 8 = 45 I C 411 = 45 I A 67 = 45 Cal 805 (PC), on the ground that in that case there was no proof of the purpose for which the tenancy had been originally acquired whereas the pattas made that purpose abundantly clear in the present litigation. He also considered that it was not established that the kabuliat of 1920 was fraudulent. Accordingly he decreed ejectment.

In appeal it is contended, first, that even if the kabuliat of 1920 is not fraudulent, yet as the defendants-appellants are occupancy raiyats, S. 178, Ben. Ten. Act, renders ineffectual the provision thereof that the executant''s interest should cease on its expiry in 1335. There can indeed be no question that if when they executed that kabuliat, the defendants were occupancy raiyats, the plaintiffs cannot eject them on the strength of it. The question then is, were the defendants occupancy raiyats in 1920 ? The lower appellate Court has found that they were not basing his view on a construction of the instrument of 1890 from which he infers a raiyati tenancy so that the defendants could only be under-raiyats. It is urged on behalf of the appellants that this finding of fact is vitiated by complete misconstruction of that instrument which, it is contended, certainly does not confer a raiyati tenancy and accordingly would not rebut the double presumption that plaintiffs'' tenancy is a tenure (and not a holding) which arises from the entry in the record-of-rights and from the fact that in extent it far exceeds 100 bighas.

The, contents of the instrument of 1890, are important. It is urged that they have been egregiously misquoted by the lower appellate Court. The contention cannot be gainsaid. That grant reproduces the terms of a previous kabuliat of 1884, except that there is a slight increase in the rates of rent for each of the four classes of land and that the period is seven years instead of five as in 1884. On both occasions the father of the plaintiffs took settlement of an area of 726 bighas odd of land consisting of 455 bighas of bhit, 32 bighas of kiari, 4 bighas of bas (residential) and 233 bighas of parti jungle (with some katas in each case), each category of land being separately entered. The document in each case is in the printed form which followed the Darbhanga survey of 1875 made under the Court of Wards management, a form which took no account of the passing of the Bengal Tenancy Act. But on the face of it, the settlement is not at all raiyati. The District Judge indeed sets out that

the pattas show beyond doubt that the purpose for which the tenancy was created was cultivation by the plaintiffs themselves, without any right to settle raiyats on the land and collect rent from them or to cut trees, etc.

But the pattas do no more than lay down that the grantee is to cultivate with sagacity and very well and bear loss due to negligence and calamities; that the grantor could cancel the patta and that the grantee could not claim occupancy right or have any of the following rights: (1) to grant katkena lease or take a partner; (2) to sell, mortgage or give possession to anybody else; (3,) to cut or plant trees or permit others to do so; and (4) to prepare danr or bandh or permit that to be done. Again the grantee is ordained to guard the boundary, to lodge information of any occurrence in that mahal and to obey the orders of the local Government. Finally the rent is in six kists, four kists of Rs. 29-4-0 and two kists of Rs. 58-8-0.

If the lower appellate Court had not expressed the contrary view, it would be hardly credible that anyone should consider that a raiyati tenancy is here demised. Not only is the original grant, described as a mahal, but the imposition of the duty appropriate to tenure-holders of lodging "information of any; occurrence in that mahal" and of "obeying the orders of the Local Government" which we find in many if not most grants of tenures and probably never in raiyati grants, is highly significant. The different classes of land and the areas seem also to imply a cultivated and inhabited village, there is a considerable area of embanked rice land as well as much upland cultivation, and there are numerous residential plots. The six kists of rent contra-indicate raiyati tenancy. Then again it is important that there is no prohibition of cultivating through raiyats�the special prohibitions are more on the lines of a rent collecting lease and the kiari lands were even in 1884 assessed at one rupee per bigha. From the details in the patta the grantee was a Babhan servant of the Darbhanga Raj with his residence in another pargana who could not possibly cultivate the demised lands himself. Under no circumstances can Ex. 3 or Ex. 4 be held to confer a raiyati tenancy.

For the considerations which govern the decision of the question whether the tenancy is a tenure or a holding, reference may be made to Tarni Singh v. Satnarain Maharaj, 1926 Pat 9 = 90 1 C 895, and the decisions of their Lordships of the Judicial Committee in Bengal Indigo Co., Ltd. v. Raghubur Das, (1897) 24 Cal 272 = 23 I A 158 = 7 Sar 94 (PC) and Debendra Nath Das v. Bibdhuendra Mansingh, 1918 P C 8 = 45 I C 411 = 45 I A 67 = 45 Cal 805 (PC). In the present instance the defendants had in their favour not only the presumption under S. 5 (5), Ben. Ten. Act, from the extent of the plaintiffs'' tenancy, namely, 726 bighas, that it is a tenure, on which their Lordships lay such stress in the decisions cited, but also the presumption attaching to the record-of-rights of 1908, the entries in which are that the plaintiffs are tenure-holders while the defendants were raiyats holding with a right of occupancy many years before 1920 in which they executed the kabuliats taking temporary settlement for seven years. There was nothing before the Courts below which could rebut these presumptions except the original grant from the Darbhanga Raj and that, as has been seen, is either definitely a grant of a tenure or to put it at the highest for the plaintiffs, so ambiguous as to admit of evidence of the conduct of the parties. It cannot be gainsaid that if the latter is admissible, it could not fail, to be wholly unfavourable to the plaintiff-respondents. It is thus clear that the plaintiffs fail hopelessly in the contention that the defendants are under raiyats holding solely under the kabuliat of 1920 and therefore liable to ejectment�it is established on the contrary that plaintiffs, arc themselves tenure-holders and the appellants are their raiyats with a right of occupancy in 1920 so that under S. 178 (1) (b), Ben. Ten. Act, nothing in the contract of that year between landlord and tenant_ could take away the occupancy right in existence at the date of the contract. The defendants had an occupancy right from at latest the date of the record-of-rights in 1908 and the contract superimposed thereupon in the kabuliat of 1920 could not operate to take away that right.

It may be mentioned that reference has also been made to the decision in Mohesh Jha v. Manbharan Mia, (1907) 5 C L J 522, in which it was pointed out that the definitions of "tenure-holder" and "raiyat" in the Bengal Tenancy Act, are not exhaustive, and it was held that a person who may have originally a large tract of land ostensibly with the object of cultivating it himself or by his servants or members of his family, may, by his conduct, afterwards convert himself, so far as third parties (under-raiyats) are concerned, into a rent-receiver and give those persons as against himself the right to remain upon the land without being liable to be ejected at his instance. The circumstances of this case do not require that the appellants'' case should be considered from the point of view that they are under-raiyats, as clearly they are not. But it is the case that the plaintiffs admittedly accepted rent from the defendants after the date of the entries in the record-of-rights and before the execution of the kabuliats of 1920 and otherwise treated them as raiyats.

The decision under appeal is wrong in law. The appeal is allowed and the suit is dismissed with costs in all the Courts.

James, J.

I agree entirely.