Jagadishwar Dayal Singh vs Bulak Mahto and Others

Fazl Ali, J.—This appeal is directed against the judgment and the decree of the Additional Subordinate Judge of Palamau in the Title Suit No 35 of 1925. The plaintiff is admittedly the proprietor of the mauza Dipaua and his case is that the defendants are the temporary thikadars of the mauza, that the last thika given to them expired on 30th Bhado 1320, but with the consent of the plaintiff, the defendants'' ancestors and the defendants have been in possession of the property as thikadar from year to year on payment of Rs. 500 as yearly rent.

It is further alleged that during the survey and settlement operations defendants 1 and 2, 5 to 9, 13 and 14 and ancestors of the other defendants cunningly got themselves recorded aspermanent thikadars and as the said entry has affected the plaintiff''s title and thrown a cloud over it, it became necessary for him to institute the suit. The relief which the plaintiff thus claimed in the suit was that it may be declared that since the expiry of the last registered thika dated 13th Asarh 1323 Fasli the defendants were temporary thikadara from year to year of the village Dipaua and that this thika was held by them on the conditions set forth in the registered kabuliyat.

The defendants contested the suit on the ground that the plaintiff had no cause of action and the suit was barred u/s 42, Specific Relief Act. They further stated that they were neither dowami nor temporary thikadars, but as they and their ancestors had been in possession of the village for a very long period and reclaimed lands therein, they had acquired the status of permanent raiyats. They also impugned the registered kabuliyat dated 13th Asarh 1313 Pasli on the ground that it was taken from them by the plaintiff by fraud and undue influence.

The learned Subordinate Judge has found (1) that the defendants are the tenure-holders of the mauza and (2) that they cannot be treated as thikadars from year to year but they are dowami thikadars having a permanent and non-resum-able right although the rent which they are liable to pay may be enhanced.

Before proceeding to deal with the arguments advanced in this case by the learned advocate for the appellant, I propose to review briefly the documentary evidence adduced in this case on behalf of the plaintiff by which he has attempted to show that the defendants cannot be treated as dowami thikadars of the village and that the survey entry in this respect is wrong.

The earliest document in point of time which is on the record is a kabuliyat (Ex. 5) executed by one Lala Bengali Lai in favour of Thakur Mahadeo Singh predecessor-in-interest of the plaintiff on 16th December 1858. This document shows that the village was settled with Bengali Lai for a period of nine years (1267-1275 Fasli) at a jama of Rs. 411 which was the jama payable for the entire period. Ex. 6 is an ekrarnama executed by Bengali Lai on 8th January 1862 by which he bound himself as a thikadar of the village to appear before the revenue surveyors to get the mauza measured and to point out to them as well as to guard and keep in repair the pillars on the boundary line of the village. Ex. 7(a) is the thakbast map of Dipaua village prepared in the year 1862 in which Bengali Lai is referred to as a thikadar under Thakur Mahadeo Singh Jagirdar. The next document in order of time is the kabuliyat (Ex. 2) executed by Bhinak Mahton, the ancestor of some of the defendants in favour of the ancestor of the plaintiff on 4th March 1865 for a period of seven years (1273 to 1279) at an annual jama of Rs. 61. It may be mentioned that one of the important clauses in the kabuliyat runs as follows:

I (declare that I) shall of my own free will and accord settle and cause others to settle (in the land), cultivate it and cause others to cultivate it, cultivate the land and appropriate the produce thereof.

This was followed by another kabuliyat (Ex. 1) executed on 26th April 1871 by Dudh Mahto and Bhinak Mahto, the ancestors of some of the defendants in favour of Thakur Mahdeo Singh for a period of nine years 1280 to 1288 at a jama of Rs. 855-4-0 payable for the whole period. The next kabuliyat (Ex. 3) was executed in 1879 by Dudh Mahto and Bhinak Mahton for a period of seven years from the beginning of 1287 to 1293 at an annual jama of Rs. 120-1-0. It may be mentioned that this kabuliyat seems to have been executed before the expiry of the last kabuliyat and the period for which it was to be in force seems to slightly overlap the period which was mentioned in the preceding kabuliyat. This kabuliyat was followed by no other kabuliyat until 20th June 1906 when the last kabuliyat in the case was executed by a number of persons who are either defendants in the suit or are the ancestors of some of the present defendants. This kabuliyat recites that the executants had obtained from the plaintiff a lease of the entire village Dipau for a period of seven years from 1314 to 1320 at an annual rental of Rs. 442-3-0. Then comes the following clause:

We, the said thikadars, our heirs and representatives, whilst holding possession of our leasehold property should settle and cause others to settle therein, cultivate and cause others to cultivate the lands, appropriate the income and produce, pay the rent year after year, instalment after instalment as per details given below to the said proprietor, his heirs and representatives and obtain acquittances therefor.

These are the documents on which the plaintiff relies in this case for showing that the defendants have always held periodical leases act cannot be treated as the permanent thikadars of the village. It may be mentioned that these documents were also placed before the Assistant Settlement Officer and the contentions of the parties before him were precisely the same as in the present suit. The Assistant Settlement Officer, however, decided to record the defendants as dowami thikadars giving the following reasons for his decision:

It is clearly proved that this Koiri family is holding the mauza for the last 48 or 50 years and it has been proved satisfactorily that these men have reclaimed almost the whole mauza though they are not founders of it.... So there is no doubt that these men are not like ordinary thikadars but they are reclaiming thikadars. This tenure is of dowami character and has been inherited and partitioned like other immovable property.... These men have reclaimed most of the lands, constructed ahars, planted trees etc. I therefore record this as dowami thikadar.... It is non-resumable but rents can be enhanced through Court.

Now, before proceeding further, in order to examine whether the survey entry can be held in this case to have been rebutted or not, it is important to consider what is meant by the term dowami thikadar. Mr. Sifton in his Settlement Report of the Hazaribagh District has described dowami thika as follows:

The Khuntkatti family may die out or leave the village at an early state and the same line of development may proceed under another non-khuntkatti manjhi; or a family may setfle down on a deserted village site and carry on its reclamation of land already cleared of jungle. In neither of these cases will the tenure evolved in the village be by definition of a khuntkatti nature, but it will be a permanent non-resumabls tenure. The name given to this class of tenure in the Record-of-Rights is thika dowami.

Mr. Sifton further quotes with approval the following description of a dowami thikadar given by another Settlement Officer:

The thikadars are found to have been in the village two or three generations or even more; their rents are indeed enhanced from time to time but the landlord never thought of disturbing his seisin. The purpose of the tenancy is mainly developing an undeveloped country and the idea of ejecting thikadars at will is indeed too inconsistent with and defeats the very object of the lease. The idea of ejecting him was never in the mind of the superior landlord. Time and tradition, custom and conduct of the parties, the very origin and object of the tenancies have thus impressed upon them an indelible stamp of permanency which it would be inequitable to ignore and unfair to deny.

Again, Mr. Bridge in his Final Report of the Survey and Settlement Operations in the district of Palamau describes dowami thika as follows:

Where a tenant has reclaimed and colonized a large area and held it over a long period of years, even though some of the characteristic features of headmanship or khuntkatti may be absent, it has been held by the Courts that he hag a permanent right of occupancy in his tenure.

The question as to what legal status a dowami thikadar has, came up for consideration before this Court in Tikait Krishna Prasad Singh Vs. Budhan Manjhi and Others, . The facts of that case were as follows: The landlord of a certain village brought a suit against certain persons who were described in the Record-of-Rights as dowami thikadars. The suit was brought for a declaration that the entry in the Record-of-Rights describing the defendants'' holding as thika dowami and non-resumable was wrong and for a further declaration that the interest of the defendants was in fact a thika from year to year and was resumable by the landlord who might legally evict the defendants after issuing due notice. It appeared in evidence that in 1859, the original holder described his tenancy as a thika and that in 1882 he made an application for a thika for four years on the ground that his existing thika had terminated and he and the defendants had been holding over since the settlement then made with him.

It further appeared that out of 586 acres of land in the village the landlord was in actual possession of 418 acres and that the defendants between them held an area of about 44 acres which was actually cultivated by them and there was also another area of 124 acres which appeared to be in whole or part cultivated by raiyats holding under the defendants. The trial Court came to the conclusion that the interest of the defendants was rightly described in the Record-of-Rights and that it was a permanent non-resumable interest. On appeal the Officiating Judicial Commissioner relying on the definition of tenure holder in Section 5, Chota Nagpur Tenancy Act, held that as the tenancy was a tenure and was originally created for a definite number of years, the survey entry was incorrect and he accordingly decreed the suit. Thereupon there was an appeal to this Court S.A. No. 23 of 1922 Budhan Manjhi v. Krishna Prosad and Dawson-Miller, C.J., sitting with Foster, J., set aside the judgment of the Judicial Commissioner and remanded the case with the following observations:

It is true that he (the Judicial Commissioner) mentions that the Settlement Report of the Hazaribagh District was called to his attention. But it seems to me quite clear that he has not considered that Settlement Report. It is Mr. Sifton''s report that he deals in Chap. 6 with cultivated tenancies which include thika dowamis of the nature of that now under discussion and a perusal of that book will show quite clearly that the customs and usages prevailing in Chota Nagpur are very different from those followed in different parts of the province and that these thika dowamia do in fact partake partly of the nature of a cultivated raiyati interest and to some extent of the nature of a tenure. Mr. Sifton goes into the origin of tenancies of this sort and he points but very clearly that whatever their exact nature and origin they are undoubtedly permanent and non-resumable. He further points out that owing to their similarity to thika leases as known in this part of the province they have frequently been misunderstood by the Court of law although the usages prevailing in Chota Nagpur are perfectly clear as showing that the holders of tenancies of this sort have undoubtedly a permanent interest. Two cases one of Mr. Kingsford in the year 1905 and another by Sir William Vincent who was then Judicial Commissioner of Chota Nagpur in the year 1909 are referred to in the report and the judgment in those cases are set out to a large extent verbatim. They contain much important matter dealing with this very question where thika dowami of this description have frequently been mistaken for the ordinary interest of a thikadar or ijaradar as-understood in this part of the province. It seems to me that apart from failing to consider the evidence in this case the learned Judge has also assumed that because this tenancy may be a tenure it is therefore non-permanent and resumable. He has failed altogether to consider whether even supposing it is to be called a tenure it is nevertheless permanent.

The learned Judicial Commissioner on remand upheld the defendants'' contention that they came on the land as cultivators and not as rent-receivers and he further held that as the defendants had obtained the settlement for the purpose of cultivation and reclaiming lands they had acquired a permanent right in the village which was correctly recorded in the survey papers. The landlords then appended and the appeal was disposed of by a Division Bench of this Court on 24th April 1928 and it has been held in that case (1) that in Chota Nagpur the terms ''thika'' and '' thikadar '' when applied to a tenancy do not necessarily or indeed, at least in tenancies originating before this century, even usually, connote that the tenancy is not permanent, (2) that the name of thika dowami is given in the Record-of-Rights to a cultivating tenancy which has arisen after the desertion of a village or part of a village by a khunt-katti founder''s family and that when a family settles down on a deserted village site and carries on reclamation on land already cleared or partially cleared, of jungle, a tenancy arises which will not be within the definition of khuntkatti but which will be permanent and non-resumable. Such tenancies partake-so much of a raiyati type in being reclaiming tenancies, that in some old judgments the holders have been held to possess a right of occupancy in their tenure: (3) that while by their nature and by custom they are permanent, neither permanency of rent nor transferability is an inherent characteristic of the tenancies and periodical settlements of rent are made between landlord and tenant on the basis of the permanency of the tenancy; (4) that the application for settlement made in 1882 being just as consistent with the periodical settlement of the rent of a permanent tenure as with the fresh grant of the tenancy when the tenants'' right to hold it had expired would not rebut the survey entry.

It was also suggested by Macpherson, J. in the elaborate judgment which he delivered in that case that:

the question whether the nature of the tenure as a cultivating tenancy was such that an occupancy right attached to it independently of any specific contract did not appear to have been explored

in some of the earlier decisions of this Court.

I have purposely set out at some length the facts of the above-mentioned cases because they are so similar to the facts of the present case and because with the decision in that ease before us there will be no difficulty in dealing with the arguments advanced in this case.

Now, one of the arguments advanced by the learned advocate for the appellant is that upon the finding of the Subordinate Judge that the defendants are the tenure-holders of the mauza and do not hold it as raiyats it cannot be held that they acquired any permanent interest in the mauza. It may, however, be pointed out that this is precisely the line of reasoning which seems to have been adopted by the Judicial Commissioner in his first judgment in the case of Tikait Krishna Prasad Singh Vs. Budhan Manjhi and Others, and which was commented upon by Dawson-Miller, C.J. in the following terms:

It seems to me that apart from failing to considar the evidence in the case the learned Judge has also assumed that because this tenancy may be a tenure it is therefore non-permanent and resumable. He has failed altogether to consider whether even supposing it is to be called a tenure it is nevertheless permanent.

Again a similar argument was advanced on behalf of the appellant when the case came a second time to this Court and Macpherson, J. dealt with the matter as follows:

It was urged by Mr. P.K. San against the judgment in appeal that it does not, as there stated, necessarily follow from the judgment of the Hon''ble the Chief Justice remanding the appeal that if the tenancy was taken originally by the defendants'' ancestors for cultivation and not for settlement of or collection of rants from tenants that the tenancy which at present is a tenure was permanent. But what is meant is that where it is not proved that the tenure is not a cultivating tenancy in which dowami right may arise (or which it is proved affirmatively that it is such a tenancy) there is no presumption that it is non-permanent and resumable like a tenure of the farming class, and the onus will of course be upon the plaintiff to rebut by evidence the entry of parmanency in the Recorder-Rights. What the learned Chief Justice indicated was that if the original tenancy was not a cultivating one it could not be a dowami, while on the other hand the mare fact that it is a tenure will not show that it is not dowami.

It must also be remembered in this connexion as has been pointed out by Mr. Siffton in his Settlement Report, that the tenancies of the type which are usually dealt with under the category of dowami thika are in fact raiyati tenancies which have grown into tenures. In this particular case there is nothing in the kabuliyats to show that the lease was granted to the ancestors of the defendants for the purpose of collecting rents or bringing it under cultivation by establishing tenants upon it. On the other hand, these leases are quite consistent with the case of the defendants that they were given for the purpose of reclaiming the lands of the village and for bringing them into cultivation. It is clearly provided in the kabuliyat that the lessees will themselves settle on the land, cultivate it and appropriate the produce thereof although they were also allowed to cause others to settle and cultivate. There is also evidence in the case that the defendants and their ancestors have themselves reclaimed a large quantity of lands and constructed ahars at considerable cost. I find therefore that in origin the tenancy was essentially a cultivating or raiyati tenancy though it may now have all the appearance of a tenure and as has been clearly pointed out in the case of Tikait Krishna Prasad Singh Vs. Budhan Manjhi and Others, the mere fact that the defendants may be described now as tenure-holders does not necessarily show, that their interest is not permanent.

It is next contended by the learned advocate for the appellants that Bengali Lai has been conclusively proved to have been a thikadar of the village at least from 1858 to 1865 and as a work of reclamation must have been going on before Bhinak came upon the scene, he was not the real founder of the village, and the defendants cannot therefore be held to have acquired a permanent interest in the village. Now, there is no definite evidence before us as to the area reclaimed by Bengali Lai who held the thika of the village from 1267 to 1275. There is, however, this significant fact that when the village was settled with Bbinak in 1865 the rent was settled at Rs. 61-0-0 annually as against an annual rent of Rs. 45-0-0 for which the village had been settled with Bengali Lai. This would go to show that at that time the village was more or less in the same condition as it was during, the time of Bengali Lai and that Bengali Lai could not have reclaimed any large area of the land. The extraordinarily low rent which Bhinak had to pay under the first kabuliyat for a village which comprises a large area also shows that the reclaimed area could not have been very large. Thus even though Bhinak may not have been the founder of the village in the strict sense of the term, he certainly came upon the scene during the earliest stages of reclamation having regard to the work done by him and his partners as well as their descendants, it is impossible to deny to the defendants the status of a dowami thikadar.

Another argument advanced in the case that the first kabuliyat was executed only by Bhinak, whereas the next kabuliyat (Ex. 1) was executed by Bhinak and Dudh Mahto and the last kabuliyat was executed by a number of persons some of whom cannot claim either Bhinak or Dudh as their ancestors. It is thus eon-tended that the village being settled with various persons from time to time it cannot be held that the defendants and their ancestors have been holding the village uniformly since 1865. Now, in the previous deposition of Jodhan Mahton, one of the defendants, given by him before the Assistant Settlement Officer he clearly stated that Bhinak, Dudh, Bhagin and Harcharan, who were related to each other, all came together and took settlement of the village and although the settlement had been made in the name of Bhinak alone, all the four cultivated and they had definite shares, those being the shares still held by the various descendants of these four men respectively. This deposition is Ex. 9 in the case and it was exhibited at the instance of the plaintiff. It is, however, urged that the statement made by Jodhan before the Assistant Settlement Officer cannot be treated as substantive evidence in the ease and the plaintiff has filed that deposition merely for the purpose of contradicting Jodhan Mahto on certain other points. This argument has some force, but even if we exclude this deposition from consideration we find that in the statement made by Jodhan Mahto in the trial Court he says, that Anant Mahto, father of Bhinak, came with the ancestors of the other defendants and got the village from Thakur Mahadeo Singh and since their death their heirs have been cultivating the village lands. These statements were not challenged in cross-examination and remain unrebutted. This being so, I do not think there is any substance in the argument of the learned advocate that the settlements were made with different, groups of men from time to time.

The next point urged by the learned advocate for the appellants is that the origin of the tenancy being known and the rights of the parties being defined in the various leases proved in this case, those rights must be determined with-reference to the terms of the leases and it is not open to the defendants to go behind them and claim the status of a permanent tenure-holder when the leases in question were from the inception of the tenancy of limited periods. It is also urged that it-is not open to the Court to look to the. surrounding circumstances or the conduct of the parties in determining the statue of the defendants when the original grant on which they base their rights is on the record.

The learned advocate refers us, in this connexion to the following cases: Kumar Tagore v. Bhuban Moyee Dasya [1918] 46 I.C. 1. Ismail Khan Mahomed v. Jaigun Bibi [1900] 27 Cal. 570, Promoda Nath Roy v. Asiruddin Mandal 15 C.W.N. 896 and Tekait Harnarayan Singh Vs. Darshan Deo, These cases are relied upon as furnishing authority for the proposition that where a tenancy is, created by a kabuliyat which on the face of it contains nothing to imply that a permanent interest has been created, the nature of the tenancy must be determined from the terms of the kabuliyat under which the tenants are holding and not from the conduct of the parties and other circumstances. It is unnecessary in this case to dispute the correctness of this proposition though, as has been pointed lout in the case of Promoda Nath Roy [1918] 46 I.C. 1, where the terms of the lease are ambiguous and the original purpose of the tenancy is not clear, it will be open to the Court to refer to the conduct of the parties and other extraneous circumstances in order to determine the nature and the purpose of the tenancy. In this particular case although the various leases purport to have been executed for a fixed term of years, yet as Macpherson, J., pointed out in the case of Tikait Krishna Prasad Singh Vs. Budhan Manjhi and Others, the periodical leases are just as consistent with the periodical settlement, of the rent of a permanent tenure as with the fresh grant o� the tenancy when the tenants'' right to hold it had expired. That being so, we have got to consider certain surrounding circumstances in order to construe the lease properly. One of these circumstances is that the property has been continually in lease with the defendants or their ancestors since the year 1865 and in none of the kabuliyats relied on by the plaintiff there is any clause providing for the reentry by the landlord at the end of the period mentioned in the lease. Further one of the clauses in the lease of 1906 runs as follows:

We, the said thikadars our heirs and representatives, whilst holding possession of our leasehold property should settle and cause others to settle therein pay rent with lagan year after year, instalment after instalment as per details given below to the said proprietor, his heirs and representatives and obtain acquittances therefor.

It is significant that although this lease was only for a period of seven years there was a reference not only to the thikadars and the zamindars but also to their heirs and representatives. Again as I have already mentioned, the kabuliyat Ex. 3 was executed in 1879 before the period of the last kabuliyat Ex. 2 had expired and the rent in kabuliyat Ex. 3 was raised to Rs. 120 from Rs. 61. These circumstances in my opinion support the view that the necessity for executing the various kabuliyats arose because the rent had to be settled from time to time.

Thus the entry in the Record-of-Rights being in favour of the defendants the onus is upon the plaintiff who challenges the entry to prove that the entry is incorrect. It was open to him to rebut this entry by showing that the defendants were inducted out and out a 3 tenure-holders and not for the purpose of reclaiming the lands and cultivating them. The terms of the lease, however, do not support that view and, as the lower Court has rightly pointed out, the evidence on the side of the defendants clearly proves the fact that their ancestors used to cultivate a great portion of the village lands, that they have reclaimed about 100 bighas of kiari lands and that they have constructed as many as seven ahars.

As to the argument advanced by the learned advocate for the plaintiff that the terms of the various leases executed by the defendants and their ancestors are sufficient in themselves to rebut the entry in the Record-of-Rights, the learned advocate obviously proceeds here on the assumption that the entry in the Record-of-Rights, is based entirely on these kabuliats. I am, however, not at all sure that this is a correct assumption. It is true that the framers of the Record-of-Rights had these kabuliyats before them but they could not ignore the local usages prevailing in Chota Nagpur, the special meaning of the word "thika" in vogue in that part of the country and the fact that when a person was made to settle in a village for the purpose of reclaiming lands and cultivating them and when he and his descendants had by expenditure of considerable labour and capital reclaimed lands, excavated tanks and developed an undeveloped tract, the lessees acquired by force of custom, or as Macpherson, J., has suggested, by operation of law a peculiar status of his own which has been described by the survey authorities as "dowami thika."

Assuming, however, that the contention of the learned advocate is correct and the rights of the lessors are to be determined only with reference to the various kabuliyats, there still arises, as I have already pointed out, the question as to whether the period fixed in the lease indicated a period after which the landlord had the right to re-enter upon the lands or it was a period for which the rent payable by the lessee had been temporarily settled and after which the question of revision of rent would become open to the landlord. As I have already pointed out, the leases in the present case are as consistent, if not more consistent, with the latter hypothesis than with the former and it cannot therefore be held that the plaintiff has succeeded in rebutting the entry in the Record-of-Rights.

In my opinion the learned Subordinate Judge has arrived at a correct decision and the appeal must be dismissed with costs.

Kulwant Sahay, J.

I entirely agree.