Dhirendra Nath Banerjee vs Chittaranjan Mondal

Chittatosh Mookerjee, J.—The Plaintiff is the Appellant in this second appeal. Her suit for recovery of khas possession of 2 cottahs of land in R.S. khatian No. 634 was decreed by the trial Court. The Defendant preferred an appeal. The learned Subordinate Judge, Second Additional Court, 24-Parganas, at Alipore, allowed the said appeal and dismissed the suit. The Plaintiff came up in second appeal. B.K. Bhattacharyya J. allowed the said appeal and remanded the case to the lower appellate Court. After remand, the lower appellate Court had again allowed the appeal of the Defendants and had dismissed the suit for recovery of possession. Hence, this second appeal.

One Bhusan Chandra Sadhukhan was recorded as a raiyat mokurari in respect of C.S. khatian No. 312 measuring 46 decimals of land of mouja Jaighura. On February 18, 1934, Jatindra Nath Sadhukhan, the original Defendant in the present suit, had taken settlement 2 cottahs out of the said land from Bhusan Chandra Sadhukhan by a registered kabuliyat. Subsequently, one Radharani Dassi acquired right, title and interest of Bhusan Chandra Sadhukhan in the said land. Thereafter, the Plaintiff Anila Bala by a kobala dated September 24, 1937, purchased right, title and interest of Radharani. The term of Jatindra''s tenancy expired in the year 1943. Anila Bala had brought the instant suit for evicting Jatindra Nath Sadhukhan on the basis that Jatindra''s tenancy was non-agricultural one. Jatindra had resisted the said suit, inter alia, contending that his tenancy was governed by the Bengal Tenancy Act and the Plaintiff was not entitled to evict him. Chittaranjan Mondal, the Respondent No. 1 in this appeal, is a transferee pendent lite from Jatindra Nath Sadhukhan and Chittaranjan Mondal was added as a party in the present case.

The principal point in this second appeal is whether or not the tenancy of Jatindra Nath was governed by the Bengal Tenancy Act and whether the Plaintiff was entitled to recover possession of the suit property from the Defendants.

B.K. Bhattacharyya J. while remanding the matter directed that the question of holding over will not be re-opened. The learned Judge also directed the Court of Appeal below to record a finding as to the status of the Plaintiff and that of the Defendants and regarding applicability of the provisions of Section 182 of the Bengal Tenancy Act to the facts of the case. The lower appellate Court at its discretion was entitled to receive additional evidence for determining the said question. After remand the parties adduced further evidence.

The lower appellate Court in its judgment under appeal has found that the tenancy of Bhusan Chandra Sadhukhan in the C.S. khatian (Ex. 4) was recorded as a raiyati at a fixed rent, indicating that the original purpose of the tenancy was agricultural. The lower appellate Court correctly pointed out (hat even if the land was used for some other purposes, it is the original purpose of the tenancy which determined its character. The lower appellate Court was also correct in holding that any sub-tenancy created under this raiyati tenancy would be agricultural in nature and would be governed by the Bengal Tenancy Act. The lower appellate Court has recorded that Dhirendra, the predecessor-in-interest of the Plaintiff who was examined as witness, did not challenge the entries in the above C.S. khalian. Accordingly, Mr. Mitter, learned Advocate for the Appellant, was not entitled to contend for the first time in this Court that the C.S. khatian (Ex. 4) was wrong. It is well-settled that the question whether a particular entry in a settlement record is a correct one or not is a question of fact. In the facts of this case, the lower appellate Court having found that the presumption of correctness of the khatian (Ex. 4) has not been rebutted by the Plaintiff, it did not commit any error of law in holding that the tenancy of the predecessor-in-interest of the Plaintiff recorded in C.S. khatian (Ex. 4) was agricultural in nature.

Mr. Mitter, learned Advocate for the Appellant, did not challenge the correctness of the above proposition that if the head-lessee be a raiyat, the under-lessee would be an under-raiyat under the Bengal Tenancy Act, no matter whether the under-raiyat held the land for agricultural or non-agricultural purposes.

The Supreme Court in Nirshi Dhobin and Another Vs. Dr. Sudhir Kumar Mukherjee and Others, while dealing with the provisions of Bihar Tenancy Act in case of lease consisting of agricultural land as well as homestead observed that the rule laid down in Babu Ram Roy v. Mahendra Nath (1904) 8 C.W.N. 454 and the long line of cases which follow the said precedents and also the similar decisions of the Patna High Court should not be disturbed. Their Lordships of the Division Bench of the Supreme Court agreed with the Full Bench decision of the Patna High Court in Dr. Sudhir Kumar Mukherjee and Others Vs. Nirsi Dhobin and Others, that the ratio of this decision might be opened to question. But the Supreme Court declined to do so as it would be unsettling a settled view of the law on the basis of which various rights must have been created, transactions entered into and titles founded. The rule laid down in the earlier decision was never departed from in the past. The Act was amended a number of times but yet the Legislature did not think it necessary to alter or modify the said rule. Unless so required in public interest, questions of law firmly settled by a long course of decisions should not ordinarily be disturbed and it was all the more so in the case of an interpretation affecting property rights.

The lower appellate Court in the instant case has found Jatindra Nath, the Defendant No. 1, had taken settlement of 2 cottahs of land from Bhusan for the purpose of residence It is true that Jatindra was a motor mechanic and not an agriculturist. But the purpose of the head-lease being agricultural, the sub-tenancy created thereunder would be necessarily governed by the Bengal Tenancy Act. The lower appellate Court at length considered the evidence on the said question.

Mr. Choudhury, learned Advocate appearing on behalf of the Respondents, rightly pointed out that a decision regarding the original purpose of the head-lease in favour of the Plaintiff''s predecessor amounted to a finding of fact which cannot be challenged in the second appeal : see the decision of Sir Asutosh Mookerjee and Rankin JJ. in Rampado Sirkar and Ors. v. Atore Dome (1923) C.L.J. 307 (310). The said Letters Patent Bench held that, in the absence of a local custom or usage, the homestead portion of an agricultural holding is governed by the provisions of the Bengal Tenancy Act, precisely in the same manner as the portion under actual cultivation. Further, it was held that the answer whether the tenancy in question was governed by the Bengal Tenancy Act or by the Transfer of Property Act depended upon the nature of the original tenancy and not on the character of the parcels included in the sub-tenancy. It was not necessary to investigate the actual origin of the tenancy; it was sufficient if it was established that at the time of the sub-lease, the holding, out of which the sub-tenancy was carved out, was an agricultural holding. See also the decision of Lahiri and Banerjee JJ. in Kinuram Sadhukhan and Anr. v. Hazi Md. Yusuf and Anr. (1958) 63 C.W.N. 939 and also the cases discussed in the said decision.

I am unable to accept the submission of the learned Advocate for the Appellants that the lower appellate Court did not comply with the order of remand by B.K. Bhattacharyya J. The lower appellate Court, on the other hand, has fully complied with the order of remand by considering the nature of the tenancy of the Plaintiff''s predecessor out of which the sub-tenancy in favour of Jatindra, the Defendant No. 1, was created. It may be also pointed out that even ''in respect of R.S. khatian No. 634 the said sub-tenancy of Jatindra was recorded describing him as a korfa tenant.

For the above reasons, I hold that the lower appellate Court has rightly held that the Plaintiff was not entitled to get any relief prayed for and his suit must fail.

I, accordingly, dismiss this second appeal.

There will be no order as to coste.