Digamber Singh vs Lengra Manjhi

Dhavle, J.—These appeals arise out of two suits brought by the present ghatwal of mauza Tengadih in the pargana of Barabhum for the declaration of his ghatwali right in certain specified lands, together with a determination that the defendants have no right or title thereto and for recovery of possession. According to the plaintiff, Baijnath Singh, one of the defendants, started reclamation in plots 1 and 4 which were recorded as the ghatwal''s khas jungle, though the Deputy Commissioner had not given to him leave to do so.

On 23rd April 1925 the then ghatwal applied to the Deputy Commissioner u/s 64, Chota Nagpur Tenancy Act, for the ejectment of the defendants. The Deputy Commissioner had an enquiry made and ascertained that in three plots (which seem really to have been sub-plots) numbered 12(a), 13 and 14 by the land acquisition surveyor, reclamation had been started by the defendants more than two years prior to the filing of the application; he therefore held that so far as those plots were concerned Section 64 was of no help to the landlord. But as regards the other plots in the suit he said that "the landlord may take steps in the proper Court to eject the trespassers."

As a result of this, the plaintiff was dispossessed from all the plots in suit. The plaintiff was appointed ghatwal on 21st November 1925, and the plaint gives 21st August 1925 as the date of the cause of action. The defence was that the conversion of the suit lands into paddy and gora lands was made immediately after the survey, and that the defendants had acquired korkar and occupancy rights in them, both according to custom and according to law,

The trial Court found that one of the suits was barred u/s 258, Chota Nagpur Tenancy Act, so far as plots 12(a), 13 and 14 were concerned, by reasons of the Deputy Commissioner''s order u/s 65 of the Act; and the suits were decreed in respect of the other plots. On appeal the Judicial Commissioner held that both the suits were completely barred u/s 139-A read with Sections 64(3) and 139(8), Chota Nagpur Tenancy Act.

Plaintiff appeals against this decision and contends that Section 64 of the Act is inapplicable to ghatwali lands by reason of Section 77 of the Act. This section runs:

Except in so far as the Local Government may otherwise direct by notification, nothing in this Act shall affect any incident of a ghatwali or other service tenure ox holding.

It is nobody''s case that there is any Government notification under the section. Prima facie the incidents of a ghatwali tenure or holding would relate to such matters as, for example, its permanency, fixity of rent, heritability, and liability to attachment and sale in execution of decrees. It has however been repeatedly held that the acquisition of a right of occupancy (not by the ghatwal but) by a raiyat under him in ghatwali land may also be an incident contemplated by that section, or by the analogous provisions contained in Section 181, Ben. Ten. Act. In Mohesh Majhi v. Pran Krishna [1905] Cri LJ 138, a case from Bankura which has been frequently referred to in later cases, Mitra, J., first pointed out that Section 181, Ben. Ten. Act, is contained in Chap. 15 of the Act which deals with contract and custom, and added that a bar to the acquisition of a right of occupancy may be a peculiar incident of ghatwali tenures in Bankura by custom or local usage. Apart from custom, he also dealt with the principle underlying the acquisition of occupancy rights in ghatwali lands by tenants under ghatwals, and observed:

If it be once conceded....that the successor of a ghatwal takes possession of ghatwali lands free of all incumbrances created by his predecessor, i.e., he is entitled to the possession of the land in the same condition as it was at the time of the first creation of the tenure, subject to any rights imposed upon it by the Government, it is difficult to say that the land may be encumbered by statutory rights such as rights of occupancy or non-occupancy. The growth of such rights would seem to be inconsistent with the nature of service tenures.

This observation was followed in this Court in Lal Singh Bhumij Vs. Krishto Khutya, , where Sen, J., (Ross, J., agreeing) observed:

In view of the rulings on the subject of ghatwali tenures, it seems clear that the better opinion is that occupancy rights are inconsistent with such tenures inasmuch as on principle the landlord is entitled to have the land that was given to the ghatwal in lieu of performance of his duty returned to him in the same condition free from any encumbrance or rights of any other person imposed upon it.

It was also followed by Kulwant Sahay, J., in Gobinda Bauri and Others Vs. Kristo Sardar, and by Sir Jwala Prasad (now Acting Chief Justice) in Durga Mandal v. Durjodhan Singh Second Appeal No. 504 of 1928 decided on 3rd January 1930. The learned advocate for the appellant contends that as it has been held by the Courts that occupancy rights cannot be acquired in ghatwali land, and as Section 67 of the Act gives rights of occupancy to every raiyat who cultivates or holds land which he or any member of his family has converted into korkar, the provisions of the Act regarding korkar can none of them be applicable to ghatwali land.

But can it be said that those general occupancy rights which arise under Sections 17 and 19 of the Act stand on the same footing in this connexion as the particular occupancy rights acquired by the conversion of land into korkar?

The settled raiyat (of Section 20, Ben. Ten. Act, corresponding to Section 17, Chota Nagpur Tenancy Act) is a creature of the legislature and not of custom or Customary law: (Mitra''s Tagore Law Lectures on the Land Law of Bengal, Edn. 2, p. 357),

and the occupancy right given to him may as in Mohesh Majhi''s case [1905] 1 CLJ 138 be said to "encumber" the land and constitute the loss to the landlord of a considerable portion of his interest. But the reclamation of jungle is a work of great labour, if not also as in former times, of some danger, and when carried out within the limits imposed by law, actually increases the value of the land to the superior holder instead of diminishing it, and the right to reclaim or convert land into korkar, like the right of occupancy in korkar, is regulated by the Chota Nagpur Tenancy Act; see Sections 64 and 67. "Korkar" is defined in Section 3 (xiii) of the Act to mean land which has been artificially levelled or embanked primarily for the cultivation of rice and which previously was jungle, waste or uncultivated, or was cultivated upland, or which, though previously cultivated, has become unfit for the cultivation of transplanted rice, and which has been prepared for cultivation....dith or without the consent of the landlord according as such consent is required or not by Section 64.

It is an essential part of this definition that the landlord''s consent must be taken where it is required u/s 64. Sub-section (1) of Section 64 provides that the consent of the landlord shall be required for the conversion of land into korkar in every case except where the land is included in the occupancy holding of the cultivator, or where, by the custom or usage of the village, tenure or estate, such consent is not necessary. Custom is thus expressly saved by the subsection; and a custom of this kind will easily arise where the work is difficult and the demand for tenants exceeds the supply.

A right of occupancy in korkar would be an almost inevitable corollary to a customary right to convert land into korkar, and such a right of occupancy would be all the more easily recognised by landlords in Manbhum a district in which there are customary rights of occupancy not generally found in other districts: see para. 71 of Mr. Gokhale''s Final Report of the Survey and Settlement Operations in the District of Manbhum, 1918-1925.

In the case, Mohesh Majhi v. Pratt Krishna [1905] 1 CLJ 138 the principle underlying acquisition of occupancy rights in ghatwali land was dealt with apart from the custom of the district Bankura which had not been agitated in the lower Courts. The occupancy rights in question in that case were based on twelve years'' raiyati occupation, and it seems to me that the principle taken to underlie the acquisition of such rights has no application to occupancy rights arising from conversion into korkar as regulated by custom or law.

Nor were occupancy rights based on custom or those particularly arising u/s 67, Chota Nagpur Tenancy Act, considered in the three Patna decisions already referred to, and the case Lal Singh Bhumij Vs. Krishto Khutya, is further distinguishable as a case from the district of Singhbhum while Manbhum has its own customs. The learned advocate has also referred to Mita Dusadh and Others Vs. Anup Mahto, but all that was held in that decision was that Section 181, Ben. Ten. Act, barred the accrual of an occupancy right by twelve years'' raiyati occupation in a service-grant of a road-chaukidar, which is itself of the nature of a raiyati tenancy.

Macpherson J., further observed in that case that in fact a local custom or usage under which such rights can arise is found in certain ghatwali tenures in this province, especially in Chota Nagpur. It appears from para. 77 of Mr. Sifton''s Final Report of the Survey and Settlement of the Barahabhum and Patkum Estates in Manbhum District, 1907-1912 (see also para. 191 of Mr. Gokhale''s Final Report) that since the eighties of the last century the view taken by Mr. Hewitt, then Commissioner of the Chota Nagpur Division, has been acted upon that raiyats holding ghatwali lands have occupancy rights both "under the present law and the custom of the district." The law referred to by Mr. Hewitt is the Bengal Rent Act (10 of 1859), which continued to be in force in the district of Manbhum until the extension, u/s 1(3), Chota Nagpur Tenancy Act, 1908, of certain sections of this, Act to parganas Barahabham and Patkum in December 1908 and of the Act as a whole to the whole of the district in December 1909.

There is nothing in the Rent Act, 1859, to bar the acquisition of occupancy rights in ghatwali land by 12 years'' raiyati occupation, (as distinguished from the more difficult and hazardous process of conversion into korkar), but Mr. Hewitt also spoke of the custom of the district in support of occupancy rights in ghatwali land. Now, Section 77, Chota Nagpur Tenancy Act, merely leaves the incidents of ghatwali tenures untouched by the Act except in so far as the Local Government may otherwise direct by notification. It does not displace any local custom regarding occupancy rights in ghatwali land. Section 67 which deals with occupancy rights in korkar is said by Mr. Reid, a Settlement officer of Chota Nagpur, at p. 80 of his edition of the Act, to give legal recognition to a well-recognised custom. Such occupancy rights do not, as I have already said, seem to be barred by the principle which has been applied against the accrual of occupancy rights by 12 years'' raiyati occupation, and I can see no reason why they should not, by custom or otherwise, accrue in ghatwali lands. Appellant''s contention that Section 64 cannot apply to ghatwali land because Section 67 does not apply to it, thus falls to the ground. It is further to be observed that Section 64 affects procedure rather than substantive rights, and that Section 77 does not bar the application of the provisions of the Act regarding procedure to ghatwali land.

The learned advocate has also contended that even if Section 64 be held to be not inapplicable to ghatwali land, it has no application to the plaintiff, because he is not the defendants'' landlord. He points out that the plaintiff does not derive his title from the previous ghatwal and does not stand in his shoes, but owes his appointment to the Deputy Commissioner, and that if, when the former ghatwal made his application u/s 64, the Deputy Commissioner had ordered the ejectment of the cultivator u/s 65(a) upon payment by the landlord of reasonable compensation, the payment would have had to be made by the former ghatwal and not by the plaintiff. It is argued in this connection also that the plaintiff was entitled on his appointment to the possession of the ghatwali land and free from any incumbrance or third persons'' rights created or imposed upon it during the incumbency of his predecessor as ghatwal. But, as I have already shown, korkar occupancy rights in ghatwali land cannot be regarded as coming within that rule. Sub-section 3, Section 64, gives the landlord two years from the date on which the cultivator commences unauthorised conversion into korkar, to apply to the Deputy Commissioner for ejectment.

There may be a change of ghatwals in this interval, and the application under the subsection will in such a case have to be made by the ghatwal who is holding office at the time of such application. Upon such an application, the Deputy Commissioner will decide between the applicant and the cultivator, and will have no jurisdiction to require the former ghatwal (if living) or his heirs to pay compensation for the benefit of the man appointed to succeed him. The argument moreover that as the succeeding ghatwal is en-titled to the possession to the land free from encumbrances created by his predecessor in office, the bar to a suit for ejectment, which arises under the concluding portion of Sub-section 3, Section 64, read with Section 139-A and Section 139(8) of the Act, does not operate against the succeeding ghatwal, overlooks the fact that the subsection plainly means that unless the landlord applies for the ejectment of the cultivator within two years from the date on which he commences the conversion into korkar, the landlord''s consent will be deemed to have been given, and that u/s 67 conversion into korkar gives the raiyat an occupancy right, notwithstanding that he has not cultivated or held the land for a period of 12 years. In my opinion the operation of the bar referred to is not affected by a change of ghatwal either within or without the period of two years limited for the application to the Deputy Commissioner.

The learned advocate has also urged that the concluding portion of Section 64(3) does not bar a suit like the present where recovery of land is sought after a declaration of title. In support of this contention he has referred to Chaudhry Gursaran Das and Others Vs. Akhouri Parmeshwari Charan and Others., Deonandan Pande and Another Vs. Anhach Kahar and Others, Aghor Manjhi and Others Vs. Kshirida Sundari and Others, and Rikhi Nath Kuari Vs. Rango Mahto and Others, . These cases are however easily distinguishable. Chaudhry Gursaran Das and Others Vs. Akhouri Parmeshwari Charan and Others., was not governed by Section 139-A at all and the other were cases against trespasses upon cultivated land. The present cases come within Sub-section 3, Section 64, and the application referred to in that subsection is an application "in respect of which jurisdiction is conferred by this act of the Deputy Commissioner" (to quote from Clause (8) of Section 139,) with the result that u/s 139-A no Court can entertain any suit concerning the matter.

The learned advocate has further urged that the order of the Deputy Commissioner, referring the former ghatwal to the proper Court in respect of plots other than Nos. 12-a, 13 and 14, is virtually an order of transfer within the meaning of the proviso to Section 139 of the Act and that therefore the civil Court had jurisdiction to try the suits. The proviso is in these terms:

Provided that the Deputy Commissioner may, subject to such rules as may be made in this behalf u/s 264, transfer any particular suit or application or any class of suits or applications, cognizable by him under this section, to a competent civil Court for trial.

But the plaints in the present suits are by no means the same as the application made to the Deputy Commissioner by the former ghatwal. What is more, one of them includes the three plots in respect of which the Deputy Commissioner had held against the former ghatwal. As the learned District Judge has shown, the Deputy Commissioner''s order referring the former ghatwal to the proper Court meant that there was (according to the Deputy Commissioner) no commencement of preparation of korkar in the other plots and that therefore the jurisdiction of the civil Court was not ousted u/s 64.

This position has since been altered; there is a concurrent finding of the lower Courts that the defendants did in fact (prior to the suits) commence to convert the remaining plots into rice lands, a circumstance which will clearly bar the jurisdiction of the civil Court to try the suits any further.

One more point requires to be noticed. The lower Courts have held that there is no proof of a local custom rendering the consent of the landlord to conversion into korkar unnecessary. This was entirely on the footing that an entry in the remarks column of the khatian, Ex. A, does not carry any presumption of correctness. The learned Munsif made this observation about the entry in Ex. A upon the authority of Suresh Chandra Rai v. Sitaram Singh AIR 1920 Pat 458. It has been urged on behalf of the respondents that the lower Courts were wrong on this point, and reference has been made to Singheshwar Chowdhry Vs. Parbal Mandal, as establishing, contrary to the decision in Suresh Chandra v. Sitaram Singh AIR 1920 Pat 458 which the learned Munsif followed, that an entry in the Record of Rights, though based on a local custom, may attract the statutory presumption of correctness.

The entry in the present cases is found not against any land recorded in the names of the defendants but against the ghatwali jungle found in the "ghair abad malik" khatian of the mauza, and according to it the tenants are entitled to re-claim waste and scrub and jungle included in the khata without the permission of the landlord. In para. 160 at p. 67 of his Final Report on the Survey and Settlement of the Barahabhum and Patkum Estates in the Manbhum district, Mr. Sifton points out how in the wilder parts of this (and the Patkum.) pargana there has never been any restriction upon the reclamation of any lands suitable for cultivation, and how, when the area suitable for further reclamation is contracted in the more open and civilized parts, the old custom permitting a raiyat to start operations without reference to any superior is almost extinguished, and any raiyat who wishes to do anything more than extend his rice land, by levelling down and including within it small portions of waste land on the edges of his cultivation, will now consult and take permission from the superior landlord.

The paragraph concludes:

The custom found existing in each villages has been recorded among the special incidents of the gairabad malik khatian.

It seems unnecessary however to pursue the matter any further at the instance of the respondents and decide whether the finding of the lower Courts that the landlord''s consent was necessary is correct in law. Not only is the appellant content with that finding, but his advocate has insisted that the finding ought not to be interfered with in these second appeals. This petition is not unintelligible. Where consent is required but has not been taken from the landlord, the cultivator can only be ejected on an application to the Deputy Commissioner u/s 64(3). Respondents have not argued that the bar to ejectment except upon such application was intended to protect not only those who should have taken the landlord''s consent and did not, but also those who are entitled under Sub-section (1), Section 64 to convert land into korkar without the landlord''s consent but whose right under that subsection is contested.

Whether or not that be the intention of the Legislature, statutes and provisions which take away the jurisdiction of the ordinary Courts must be construed strictly; and as Sub-section 3, Section 64, stands, the bar comes into play in those cases only in which the landlord''s consent is required but is not obtained. If this be the correct view, civil suits for ejectment will not be barred in those cases in which the cultivator is not required by Sub-section (1), Section 64 to take the landlord''s consent. But the appellant does not stand to gain anything by conceding a customary right and only thus establishing the jurisdiction of the civil Court. The application for ejectment made to the Deputy Commissioner in 1925 implied that according to the then ghatwal there was in the village or tenure no customary right of reclamation without taking the landlord''s consent.

The plaintiff also has not sued on the footing that there is such a custom in the village or tenure, but that nevertheless he is entitled to eject the cultivators. On the contrary, the case made in the plaint is that the defendants have no right to convert the jungle lands into khets and gorahs without the permission of the ghatwal or the Deputy Commissioner. In these circumstances the appeal must be dealt with on the footing urged by the appellant and not on that urged by the respondents. The appeals fail on every point urged for the appellant and are dismissed with costs.