Ghasi Sahu and Others vs Shib Sahu and Another

Chatterji, J.—This appeal arises out of. a suit for recovery of possession of the disputed plots of land mentioned in Schedule B of the plaint. These plots form part of two raiyati holdings bearing khata Nos. 66 and 142 in mauza Hochar. These holdings were sold on 18th May 1986 in execution of a decree for arrears of rent obtained by the Maharaja of Chota Nagpur against the recorded tenants and were purchased by the plaintiffs. The plaintiffs took delivery of possession of the holdings including the disputed plots on 12th July 1936. Since then, they allege, they were in possession of the holdings. But in Aghan 1993 Sambat the defendants in collusion with one another dispossessed them from the disputed plots, alleging that they were under-raiyats in respect thereof. There are 15 defendants out of whom 7, 8 and 11 to 15 contested the suit. Defendant 9 admitted the plaintiffs'' claim. The defences raised were substantially twofold. The first was that the decree obtained by the landlord was not a rent decree and the sale held in execution of it was not a rent sale under the provisions of Section 208, Chota Nagpur Tenancy Act, but was a sale by which only the right, title and interest of the judgment-debtors passed to the auction purchaser. The grounds on which the decree was said to be not a rent decree were, firstly, that one of the defendants in the rent suit, namely Bara Rungtu Munda, had died before the suit and his heirs were not made parties; secondly, that another defendant Baij Laha was a minor but was impleaded as a major; and thirdly, that two plots Nos. 863 and 978, out of the two holdings were omitted from the suit. The other defence was that the defendants were under-raiyats with occupancy right in the disputed plots and their occupancy right in these plots could not be annulled by the rent sale, and therefore they could not be evicted from these plots. They pleaded that by custom and usage they acquired occupancy right by remaining in possession for more than 12 years.

In the revisional record of rights the defendants, excepting 11, were recorded to be in possession of the disputed plots, except plot No. 1687, as under-raiyats having occupancy right. There is a village note Ex, B dated 6th February 1934 to the effect that there is a custom in the village that "an under-raiyat also acquires occupancy right in the same manner as other tenants. Relying upon this village note, and the record of rights, the learned Munsif held that the defendants acquired occupancy right in the disputed lands. On the other questions, he found that Rungtu Munda was not dead at the time when the rent suit was brought and that the defendant Baij Laha was not a minor. He, however, held that plots Nos. 368 and 978 were left out in the rent suit and that therefore the rent sale was not a sale u/s 208, Chota Nagpur Tenancy Act, and could not affect the interest of persons other than the judgment-debtors. He further found that the plaintiffs acquired a valid title by their auction-purchase to plot No. 1687 which was recorded as a kaimi land of Rungtu Munda (father of defendant 11) who was a party to the rent decree and the rent sale. Upon these findings, he decreed the suit in part only with respect to plot No. 1687 and dismissed it with regard to the remaining plots.

On appeal by the plaintiffs, the learned Subordinate Judge held that the defendants failed to establish that they acquired by custom occupancy right in the disputed plots. He also reversed the learned Munsif''s finding that two plots of the holding were omitted from the rent suit. He found that by mistake plots Nos. 263 and 878 were mentioned instead of plots Nos. 363 and 978 respectively. He affirmed the findings of the learned I Munsif on the other points. Accordingly he allowed the appeal and decreed the suit. Defendants 1, 11,12,13 and 14 have preferred this second appeal. This appeal was originally heard by Manohar Lall, J., who referred it to a Division Bench. The chief contention of Mr. K.K. Banerji on behalf of the appellants is that the learned Subordinate Judge''s finding that "the defendants have failed to establish the fact that they have acquired by any custom or usage the right of occupancy in their under-raiyati holdings" cannot be regarded as a finding of fact binding in second appeal. The learned Subordinate Judge says:

in the present case there is no evidence on the record to show whether the under-raiyati holdings were created by contract or whether there is any local custom or usage by which under-raiyats can acquire rights of occupancy in their under-raiyati holdings except the village note (Ex. E) in which it is said that under-raiyats do acquire occupancy rights in the same manner in which a tenant does. There is no presumption of the correctness of this entry in the village note.

Here, the learned Subordinate Judge is entirely wrong. There is the record of rights in which the defendants are shown to have occupancy right. The record of rights carries a statutory presumption. The learned Subordinate Judge nowhere in his judgment refers to the record of rights, and yet he says "there is no evidence on the record to show, etc., etc." Again, he altogether brushes t aside the village note Ex. E simply on the ground that "there is no presumption of the correctness of this entry in the village note." There may be no presumption attaching to an entry in a village note, but certainly, it is a piece of evidence, and good evidence, on the question of village custom. The learned Subordinate Judge having ignored these important pieces of documentary evidence, namely, the record of rights and the village note, his finding that "the defendants have failed to establish the fact that they have acquired by any custom or usage the right of occupancy in their under-raiyati holdings" cannot be supported. This finding must be set aside and the case will be remanded to him so that he may come to a proper decision after considering the record of rights and the village note along with the other evidence on the record. Mr. Sarjoo Prasad on behalf of the respondents contends that a remand is unnecessary, because, even assuming that the defendants acquired occupancy right in the disputed lands, they are still liable to be evicted. It is no longer disputed before us that the rent sale was a sale held under the provisions of Section 208, Chota Nagpur Tenancy Act. The relevant portion of that section runs as follows:

(1) When a decree passed by the Deputy Commissioner under this Act is for an arrear of rent due in respect of a tenure or holding, the decree-holder may apply for the sale of such tenure or holding, and the tenure or holding may thereupon be brought to sale, in execution of the decree, according to the provisions for the sale of under-tenures contained in the Bengal Bent Recovery (Under-tenures) Act, 1865, and all the provisions of that Act, except Sections 12, 13,14 and 15 thereof, shall, as far as may be, apply to such sale:

Provided that the purchaser of a tenure at any such sale shall not be entitled to annul any lease, right or tenancy referred to in cla. (a) to (c) of Section 14 of this Act.

It is conceded that the proviso just quoted does not apply to the present case, because it refers to the purchaser of a tenure and not of a holding. The section provides that all the provisions of the Bengal Rent Recovery Act, 1865, except Sections 12, 13, 14 and 15 thereof, shall, as far as may be, apply. Section 16, Bengal Rent Recovery Act (8 of 1865) is important and its relevant portion runs as follows:

The purchaser of an under-tenure sold under this Act shall acquire it free from all incumbrances which may have accrued thereon by any act of any holder of the said under-tenure, his representatives, or assignees unless the right of making such incumbrances shall have been expressly vested in the holder by the written engagement under which the under-tenure was created, or by the subsequent written authority of the person who created it, his representatives, or assignees:

Provided that nothing herein contained shall be held to entitle the purchaser to eject khudkashat raiyats or resident and hereditary cultivators, nor to cancel bona fide engagements made with such class of raiyats or cultivators aforesaid by the late incumbent of the under-tenure or his representatives, except it be proved, in a regular suit, to be brought by such purchaser for the adjustment of his rent, that a higher rent would have been demand-able at the time such engagements were contracted by his predecessor.

Mr. Sarjoo Prasad contends that by virtue of the provisions of this section of the Bengal Rent Recovery Act, 1865, the purchaser of a tenure or holding sold u/s 208, Chota Nagpur Tenancy Act, shall acquire it free from all incumbrances. An under-raiyati interest is an incumbrance, and therefore the plaintiffs by their auction purchase at the rent sale acquired the raiyati holdings free from the under-raiyati interest. In this view, the plaintiffs are entitled to recover khas possession of the disputed lands by ejecting the defendants who are under-raiyats. It will be noticed that Section 16 speaks of "incumbrances which may have accrued thereon by any act of any holder of the said under-tenure." So far as the under-raiyati interest is concerned, it is no doubt an incumbrance which accrued on the holding by an act of the raiyat. But the occupancy right which is acquired by the under-raiyat by custom is not a creation of the raiyat. It is a creation of custom, and therefore of law, because custom has the force of law. So the interest of an under-raiyat who acquires occupancy right by custom cannot be said to be an "Incumbrance which may have accrued thereon by any act of any holder of the said under-tenure" within the meaning of Section 16, Bengal Rent Recovery Act, 1865. Section 16, in my opinion, does not entitle the purchaser of an under-tenure to eject an occupancy raiyat in actual possession of the land. Nor does it entitle the purchaser of a raiyati holding to eject an under-raiyat having occupancy right in the land. This view is supported by the decision in Nil Madhub Kurmokar v. Shiboo Paul 13 W.R. 410. There the plaintiff who was a purchaser of an under-tenure at a sale held under the Bengal Rent Recovery Act, 1865, sued to eject a mokararidar who had obtained his lease from the out-going tenure-holder. The lessee pleaded that he acquired occupancy right in the land by being in possession for more than 12 years, and was therefore protected from eviction. ''This defence was upheld by the High Court. On behalf of the plaintiff reliance was placed on Section 16, Bengal Rent Recovery Act, 1865, and it was contended that the mokarari lease being an incumbrance, the plaintiff by his auction purchase acquired the under-tenure free from the mokarari lease. The contention was disposed of by Hobhouse, J. who delivered the judgment, in these words:

The incumbrance to which Section 16, Act 8 of 1865 (Bengal Council), refers, is not the person, but the-thing. The lease in this instance might possibly be avoided; but it does not follow that the man who holds the lease must necessarily thereby and therefore be ejected. The law does not say so, and on the contrary the provisions of Act 10 of 1859, on which defendant relies, protect a person who, like defendant, has a right of occupancy.

This decision was followed by Rankin C.J. and C.C. Ghosh, J. in Janaki Nath Nandi Vs. Amarendra Nath Biswas and Another, Though this last mentioned case related to the provisions of Section 11 of the Patni Regn. 8 of 1819, their Lordships referred to and relied upon the decision in Nil Madhub Kurmokar v. Shiboo Paul 13 W.R. 410, because the provisions of Section 16, Bengal Rent Recovery Act, 1865, are similar to those of Section 11 of the Patni Regn., 8 of 1819. Section 76, Chota Nagpur Tenancy Act, which refers to "saving of custom" gives illustration 2 as follows:

A custom or usage by which an under-raiyat can obtain rights similar to those of an occupancy raiyat is similarly not inconsistent with, and is not expressly or by necessary implication modified, or abolished by, the provisions of this Act, and will not be affected by this Act.

The village note Ex. B shows that an under-raiyat acquires occupancy right in the same way as other tenants. In other words, an under-raiyat acquires by custom rights similar to those of an occupancy raiyat. One of the rights given to an occupancy raiyat by the Chota Nagpur Tenancy Act is that he shall not be ejected by the landlord from his holding except on certain specified grounds, which need not be stated (Section 22 of the Act). Consequently, an under-raiyat who acquires by custom an occupancy right is also protected from eviction.

Mr. Sarjoo Prasad relies on the decision of this Court in Mahadeo Prasad Sahu Vs. Gajadhar Prasad Sahu, in which it was held that a lease of zerait lands granted to an occupier in circumstances which would give him a right of occupancy over the land would amount to an incumbrance. That was a case which turned on the construction of the terms of a compromise decree in a partition suit. One of the clauses in that decree provided that:

If any "property had been mortgaged or otherwise encumbered the party mortgaging or encumbering it do redeem the property or otherwise indemnify the other party for any loss that the latter may sustain.

It transpired that the judgment-debtor had granted lease of some zerait lands in his possession within the village which by the terms of the decree was allotted to the decree-holder. The decree-holder in accordance with the provisions of the above quoted clause in the decree claimed compensation from the judgment-debtor. A question arose whether the lease of the zerait lands granted by the judgment-debtor amounted to an incumbrance. The learned Sir Dawson Miller C.J. who delivered the judgment said:

Anything, in my opinion, which interferes with the unrestricted rights of the proprietors as they then existed would be an encumbrance upon the land, even the granting of a lease of zerait lands, that is to say, the lands which the landlord is entitled to hold in direct possession and to cultivate for his own purposes. A lease of such lands granted to an occupier in circumstances which would give him a right of occupancy over the land would, in my opinion, amount to an encumbrance.

The question thus arose with reference to the provisions of the compromise decree in order to determine whether the party creating the incumbrance was liable to indemnify the other party. Considerations which arise in construing the terms of a contract cannot be used by way of analogy in construing the, provisions of a statute. This decision, therefore, in my opinion, can have no application in construing the provisions of Section 16, Bengal Rent Recovery Act, 1865. Mr. K.K. Banerji also relies on the proviso to Section 16, Bengal Rent Recovery Act, 1865, which protects "khudkasht raiyats or resident and hereditary cultivators". He contends that the defendants are resident and hereditary cultivators and as such are within the protection. This raises a question of fact which does not appear to have been considered by the Courts below. Mr. Sarjoo Prasad objects that this question should not be allowed to be raised at this stage. It is pointed out that the defendants in their written statement claimed protection u/s 14, Chota Nagpur Tenancy Act, which, however, is not applicable, because it relates to "annulment of incumbrances on resumption of resumable tenure". However, the defendants specifically pleaded that they had occupancy right, and were not liable to be ejected. Both the Courts below seem to have proceeded on the footing that if they had occupancy right, they would be protected. In the circumstances, I think that it is necessary for the ends of justice that the, lower appellate Court should determine whether the defendants are resident and hereditary cultivators. But for this purpose no further evidence should be allowed to be produced by the parties. The Court should proceed upon the evidence already on the record. If the lower appellate Court finds that the defendants have acquired by custom occupancy right in the disputed lands or that they are resident and hereditary cultivators, the plaintiffs suit shall be dismissed except with regard to plot No. 1687 which was recorded as the kaimi land of Rungtu Munda who was a party to the rent decree. I would, therefore, allow the appeal, set aside the decision of the lower appellate Court and remand the case to that Court for disposal according to law in the light of the above observations. Parties should bear their own costs in this Court.

Fazl Ali, J.

I agree.