Gopinath Sarangi and Another vs Ajharrul Haque

Das, J.—This appeal arises out of a, suit instituted by the appellants for ejectment of the respondent under the provision of Section 57-B of the Orissa Tenancy Act. The case of the plaintiffs is that they are occupancy tenants and that the defendant is an under-raiyat. The defendant claims to be the occupancy raiyat and resists the suit on that ground. The Court of first instance found in favour of the plaintiffs and gave them a decree substantially as claimed by them, The lower appellate Court has reversed the decision of the Court of first instance holding that the defendant has a right of occupancy in the disputed land.

Both the Provincial Settlement of 1897 and the revisional Settlement of 1911 record the plaintiffs as occupancy tenants and the defendant as an under raiyat. The learned District Judge has taken the view that the Settlement Officer had no jurisdiction to confer upon the plaintiffs the status of occupancy raiyats. He refers to the previous litigations between the parties in 1880 and 1887 in support of his view that those litigations affirmed an old tenancy of the defendant and of his predecessors-in-title coming down from 1258. He that u/s 6 of Act 10 of 1859 the defendant and his predecessors-in-title acquired rights of occupancy, before the Bengal Tenancy Act was extended to Orissa for the preparation of the record of rights. His view is that if, as he thought, the defendant and his predecessors-in-title had already acquired rights of occupancy in the land under Act 10 of 1859 the Settlement Officer, acting as he did under the Bengal Tenancy Act, could not take away those rights, and that accordingly he was not justified in recording the defendant as an undertenant. Referring to Section 6 of the Orissa Tenancy Act, he says that that section cannot have a retrospective effect so as to affect vested rights already acquired, This, I think, is the substance of the decision of the learned District Judge.

I am in entire agreement with the learned. District Judge that rights already acquired under Act 10 of 1859 could not be taken away by the Settlement Officer acting, as he did, under the provisions of the Bengal Tenancy Act; but I differ from him as regards his view that the litigations of 1880 and 1887 establish that the defendant or his predecessors in title had acquired rights of occupancy in the disputed land before certain provisions of the Bengal Tenancy Act were extended to Orissa. The Record of Rights being in favour of the plaintiffs it is for the defendant to establish that it is wrong. The onus of proof is not discharged by producing evidence which is just as consistent with the allegation of the party on whom the onus of proof lies as with the denial of the opponent.

The whole question in this case is, does the history of the litigation between the parties establish that prior to the extension of the provisions of the Bengal Tenancy Act to Orissa, the defendant and his predecessors-in-title had acquired rights of occupancy in the disputed land?.

I agree that those litigations affirmed an old tenancy in favour of the defendant coming down from 1258; but a tenant holding a patta does not necessarily acquire rights of occupancy in the land by 12 years occupation. The general rule u/s 6 of Act 10 of 1859 is undoubtedly to the effect that every raiyat who has cultivated or held land for a period of 12 years has a right of occupancy in the land so cultivated or held by him whether he held under patta or not, so long as he pays the rent payable on account of the same, but Section 6 expressly says that this rule shall not apply to khamar nij jot or sir land belonging to the proprietor of the estate or tenure and let by him on lease for a term of years or year by year, nor (as respects the actual cultivator) to lands sub-let for a term of years or year by year by a raiyat having a right of occupancy.

In order to succeed it was necessary for the defendant to establish, not only that he or his predecessors in title cultivated or held the land for a period of 12 years before the Bengal Tenancy Act was extended to Orissa, but also that these lands were not sub-let to his predecessors-in-title for a term of year by year. The fact found by the learned District Judge is that the predecessors-in-title of the defendant held the land as a cultivator for a period of twelve years before the Bengal Tenancy Act was extended to Orissa, but this does not in any way rebut the presumption of the correctness of the entry in the record of rights since presumably the Settlement Officer had the patta before him and proceeded to record the status of the defendant on the footing of the patta. It is quite true that the evidence produced by the defendant is consistent with his allegations that he acquired rights of occupancy in the disputed land before the preparation of the record of rights in this case, but it is equally consistent with the case of the plaintiffs that the defendant and his predecessors-in-title throughout held as under-tenant who could not acquire rights of occupancy u/s 6 of Act 10 of 1859. This being the position, the fact found by the learned District Judge does not rebut the presumption of the correctness of the entry in the record of rights.

In regard to the other point made by the learned District Judge the short answer is that it is based on an assumption which the learned District Judge was not entitled to make in this case. He says that Section 6 of the Orissa Tenancy Act cannot have a retrospective effect so as to take away the vested rights. The question, however, is has it in the particular case taken away any vested rights? In order to succeed it was necessary for the defendant to establish that he or his predecessor-in-title had acquired rights of occupancy under Act 10 of 1859. This, as I have already said, the defendant has not established. If I may say so with respect, the error in the judgment of the learned District Judge lies in assuming that 12 years occupation gave the defendant rights of occupancy in the land unless the plaintiffs established that the lands were sub-let to the predecessors-in-title of the defendant for a term of year by year by the plaintiffs as raiyats having a right of occupancy. This in my view is not a correct way of deciding the case. The Record of Rights being in favour of the plaintiffs, it was for the defendant to establish, not only that the general rule applies to him, but also facts showing that the exception of the general rule does not apply. As I have said, the only proof in this case is that the defendant, and his predecessors-in-title have been in possession of the disputed land since 1258: but this is just as consistent with the allegation of the defendant on whom the onus of proof lies as with the denial of the plaintiff. Where this is so the party on whom the onus of proof lies must fail.

An elaborate argument was advanced to us on behalf of the respondent on the construction of the different Regulations dealing with the resumption of lands in Orissa. In considering these arguments it is necessary to remember that the plaintiffs have been recorded in the Record of Rights as bajeafti occupancy raiyats. The argument of the learned vakil for the respondents is to the effect that the bajeaftidars were proprietors and were recognised as such under the Regulations and that their status could not be reduced to that of occupancy tenants by the settlement officer. If this argument be correct, then it must follow that the plaintiffs are proprietors, and that the defendant must be an occupancy raiyat.

The argument involves an examination of the status of the bajeaftidars. When the British took over Orissa they found numerous persons in possession who claimed the right to hold lands free of payment of revenue. These persons were invited to register their claims in the office of the Collector with a view to an investigation of their title u/s 18 of Regulation XII of 1805; Resumption proceedings under Regulations XII of 1805, II of 1819, and XIV of 1825 "began to be taken in 1838, and rents were assessed on all resumed lands in accordance with the rules framed by the Government. Bajeaftidars are persons whose lands were resumed by the Government under the various Regulations, and were assessed to revenue. Under Bengal Regulations rents assessed on all resumed lands of less than 100 acres in extent belonged to the proprietors of the permanantly settled estates within which such lands were situated. This provision did not extend to Calcutta, and Regulation XII of 1805, and Section 3 of Regulation II of 1819 establish that the rent assessed on the resumed lands belonged to Government.

But the Government clearly recognised that in regard to small patches of land not exceeding a few bighas in extent all distinction between resumed lakhraj, and common raiyati lands would be lost--See Maddox Report, para. 314, page 213. Mr. Maddox points out in para. 315 of his report that the bajeaftidars look upon themselves as proprietors rather than as tenants but that the resumed jagirs held by men of the cultivating and artisan classes, have to a great extent merged in the general body of the raiyati land. Although as I have said the rent assessed on the resumed lands is recognized as belonging to Government still it was decided that such revenue in regard to lands having an area of less than 75 acres should be payable through the zemindar and the makaddams of the mahal within which the land lay, and that the latter should receive exactly the "same pecuniary immunities as they were entitled to in the case of raiyati lands."

It was strongly insisted before us that as the rent or revenue assessed on the disputed land belongs to Government, the plaintiffs are proprietors and not raiyats having rights of occupancy in the lands, but the answer to the argument is that the Government has throughout collected this rent or revenue through the zamindar or tenure-holder of the mahal within which the lands lay, and the position of the zamindar or the tenure-holder is exactly the same as if the disputed lands were raiyati lands. In the Record of Rights the disputed lands are shown as lying within a particular zemindari and the zamindar is shown as the landlord of the plaintiffs. The incidents of the bajeafti teuures were carefully investigated by Mr. Mcpherson and he says that one of the incidents is that the tenure is divisible, but that no division of the rent is binding on the landlord without his consent. There is a little doubt that, whatever, the position of the bajeaftidars may have been under the regulations, the custom of the country has recognised them as tenants where they held an area of less than 75 acres.

In the settlement which took place between 1890 and 1900 many of the bajeaftidars claimed to be proprietors or dependent taluqdars and it appears from the report of Mr. Maddox (see para. 339) that they recsented being styled raiyats. A compromise was entered into by which those who claimed to be proprietors were given the status of tenure-holders.

Mr. Maddox points out in para. 839 that under-tenants include all classes of persons occupying land included within the tenure or holding of a tenant other then a proprietary tenure-holder or farmer and that they are tenants-holding under bajeaftidars and other privileged tenure-holders and he points out that, there can be little doubt that by the custom of the country they were considered to be mere tenants at will.

On the admitted history of the position of the bajeaftidars, they are raiyats when they are shown to be in possession of land of 75 acres in area or less, and persons holding under them are recognised by the custom of the country only as mere tenants-at-will. The only exception to the proposition is that some of the bajeaftidars were given the same status of tenure-holders as a matter of compromise in the settlement which took place between 1890 and 1900.

The learned vakil for the respondent bases his argument on the various Regulations which describe the position of the bajeaftidars as proprietors. So they were before their lands were resumed. The Regulations do not purport to legislate to their status upon resumption. On this question, the Regulations are silent. Regulation XII of 1805, establishes fixed rules for the settlement and collection of the public revenue in the Zilla of Cuttack. Section 17 of that Regulation lays down rules in modification of the provisions of Bengal regulation XIX respecting lands exempt from the payment of revenue under grants not being Badshahi or royal, Sections 18-20 provide rules for trying the validity of grants made at different periods, Section 22 lays down rules for assessing lands declared subject to the payment of revenue to the Government under Sections 18-20.

The first clause of Section 22 provides that.

the revenue assessable on all lands which shall be adjudged or become liable to the payment of revenue...is declared to belong to Government.

The second clause provides that the revenue payable to Government shall be regulated by the rules prescribed by this Regulation and that.

if the proprietor shall not agree to the assessment so fixed, a report of his objections, and of the circumstances of the case, shall be made by the Collector of the district through the Board o� Revenue for the information of the Governor-General in Council, who will determine on the amount of the assessment, and if the proprietor shall refuse to engage for the same, the lands shall be let in farm or held khas, under the rules contained in the existing Regulations.

Great stress is laid in the arguments before us a two circumstances; first that the revenue assessable on the resumed land is declared to belong to Government; and secondly that the holder of the resumed tenure is described as a proprietor. With regard to the first point, it may be pointed out that though the revenue is declared to belong to Government, it is collected through the zamindar or tenure-holder of the mahal within which the lands lay if they comprised an area of 75 acres or less, and that the position of the zemindar or the tenure-holder is the same as if the lands were raiyati lands.

With regard to the use of the term, proprietor it may be mentioned that the Regulation does not pretend to legislate as to the status of the holder of the resumed tenures. As the preamble shows that Regulation was enacted "for the settlement and collection of the public revenue in the Zilla of Guttack"; not for conferring, any particular status-upon the holders of the resumed tenures. It is not necessary to go through the various sections which have been referred to us in the arguments of the learned; vakil for the respondents; it is sufficient to say that the Regulations do not determine the status of the holders of the resumed tenures. For that we have to go to the history of these tenures. When that history is examined in the light of the report of Mr. Maddox, there is no doubt whatever that by the customs of the country the holders of these tenures-when they comprise an area of 75 acres or less are recognized as raiyats, and; their tenants as mere tenants-at-will. Some of them objected to being styled raiyats in the settlement which took place between 1890 and 1900 and by a compromise they were given the status of tenure-holders.

As to whether in a particular case, the status of the holder of the resumed grant is that of a tenure-holder or that of a raiyat must be determined by reference to the entry in the Record of Rights, In the particular case the holder was recorded as a raiyat and he must be assumed to be a raiyat until the contrary is shown.

On the 16th September 1891, by a notification in the Calcutta Gazette. Sections 3, 5, 19 to 26, 41 to 49, 53 to 75, Section 191 and Ch. X. of the Bengal Tenancy Act were extended to Orissa to enable the Settlement Officer to prepare a Record of Rights. The Record of Rights was accordingly prepared under the provisions of the Bengal Tenancy Act as extended to Orissa. That Record of Rights describes the plaintiffs as occupancy tenant and the defendant as an under-tenant. The contention of the learned vakil for the respondents is that the Settlement Officer had no jurisdiction to alter the status of the bajeaffcidars from that of proprietors to that of a raiyat without any sanction of any Statute. The answer is that there is no Statute which gave the bajeaftidars the status of proprietors. Between 1837 when resumption proceedings began to" be taken and 1898 when the Record of Rights was made, the position of petty bajeaftidars had been reduced by force of circumstances to that of raiyats. I quite agree that if any Statute had in distinct terms conferred upon these bajeaftidars the status of proprietors, it would not be in the power of the Settlement Officer to record them as tenants, but as I have shown the particular status of the bajeaftidars was not the subject-matter of any Regulation.

It was, therefore, in the power of the Settlement Officer to record the status of these petty bajeaftidars and, in my opinion, it has not been shown that in 1898 these petty bajeaftidars were proprietors. It is not very relevant to consider what their position must have been before the resumption proceedings took place. Rights possessed by persons may be lost by lapse of time, and the admitted history of the tenure shows that the bajeaftidars have lost by lapse of time whatever rights they may have had before the resumption proceedings, and that during the settlement between 1890 and 1900 it was clearly recognized that they were raiyats and nothing more. It is true that some of them claimed the status of proprietors and by a compromise they were recognized as tenure-holders but where they were not so recognized, their status was regarded as that of raiyats.

The Orissa Tenancy Act was enacted in 1913. Section 6 of the Act provides as follows:

Notwithstanding anything hereinbefore contained:

(i) Every bajeaftidar who is recorded in any Record of Rights finally published under Oh, XI pr under any other law for the time being in force as a bejeaftidar tenure-bolder, and his successors-in-interest shall be deemed to be, a tenure-holder for all the purposes of this Act;

(ii) every bajeaftidar who is recorded in any such Racord of Rights as a bajeaftidar raiyat, and his successors-in-interest shall be deemed to be a teaure-holder for the purpose of Sections 11 to 20 and 99 and raiyat for the purposes of all other sections of this Act.

It is obvious that the Orissa Tenancy Act recognizes that the bajeaftidar may be a raiyat. It, therefore, destroys by implication the argument of the learned vakil for the respondents that the status of the bajeaffcidar was recognized by the regulations as that of a proprietor. It was, however, contended that Section 6 cannot have a retrospective effect and that it will not apply to Record of Rights finally published subsequent to the time when the Orissa Tenancy Act came into operation. But if the argument of the learned vakil is right Section 6 can never have any operation at all. Section 6, it will he noticed, does not purport to define the status of bajeaftidar although it defines the status of bajeaftidar recorded in the Record of Rights either as tenure-holder or as a raiyat. If the argument of the learned vakil be right a bajeaftidar can not be regarded either as a tenure-holder or as a raiyat.

Whether Section 6 can have a restrospective effect or not, it is not necessary for me to determine in this appeal. Assume that it cannot have a retrospective effect, but still the plaintiffs have been recorded in the Record of Rights as occupancy tenants. If the argument of the learned vakil be right, then we should not look to Section 6 of the Orissa Tenancy Act; but still certain provisions of the Bengal Tenancy Act were extended to Orissa and under those provisions we are entitled to assume until the contrary is proved that the plaintiffs are occupancy tenants and that the defendant is an undertenant.

In applying Ch. 8 of the Orissa Tenancy Act to this case it is to be noted that Section 56 supports my view of the law as to bajeaftider raiyats, in the proviso that if the landlord be a bajeaftidar the limits of rent payable by the under-raiyat are to be calculated with reference to the average cash rent paid by occupancy raiyats for similar land in the village, not with reference to the rent which the bajeaftidar himself pays.

In my opinion neither the history of the previous litigation between the parties (upon which the learned District Judge relies) nor the history of the regulation affecting these lands (upon which the learned vakil for the respondents relies) rebuts the presumption of the correctness of the entry in the Record of Rights. That being so, the Record of Bights must have full effect.

It was suggested in the learned Judge''s judgment that Section 57-B of the Tenancy Act is inapplicable because the tenancy is referable to a written patta. The learned District Judge''s phraseology does not correctly reproduce the words of the section "holding otherwise than under a written lease"; it is important to remember that the last we hear of a lease in the previous history of the defendant''s tenancy is in 1887.

There is nothing at all on the record to show that the defendant is now holding under a patta and in fact the entry in the Record of Rights has no reference to any patta. We know nothing of the conditions of the patta nor has it been produced. The matter was not even discussed in the arguments addressed to the learned District Judge.

I would accordingly allow the appeal, set aside the judgment and the decree passed by the Court below and restore the judgment and the decree of the Court of first instance. The appellants are clearly entitled to the costs throughout and we order accordingly.

Foster, J.

I agree.