Janki Singh vs Mahant Jagan Nath Das and Others

Atkinson, J.—This second appeal comes before me from the decision of the Additional Subordinate Judge of Monghyr, reversing the decision of the Munsif awarding the plaintiff a decree in this suit. The action was brought to recover possession of 6 bighas 8 cottas 18 dhurs of land situated in Mauza Hamidpur Lachmi Narain in the District of Monghyr. The plaintiff derives title through defendant No. 3. Defendant No. 3 made a letting of the lands in suit on the 6th of May 1903 to defendants Nos. 1 and 2 of 12 bighas odd for a term of nine years, viz., from 1311 to 1319 F.S. In the lease to defendants Nos. 1 and 2 the lands were described as being the zerait lands of the lessor, namely, defendant No. 3. Defendant No. 2 has surrendered his portion of the lands demised by the lease of the 6th of May 1903; but defendant No. 1 claims a right to retain his portion of the lands demised by the lease and the plaintiff contends that defendant No. 1 upon the expiration of the lease was liable to be ejected. I do not think it is necessary to go further into the facts of the case than I have already done. It is conceded by both sides that the plaintiff claims title through defendant No. 3 who acquired a proprietary right in the lands in suit by purchase from the original proprietors, namely, Khedu Singh and Shib Sahay Singh. The lands have been let since 1884 for various terms and in each lease the lands were described as zerait lands. Defendant No. 1 appeals against the decision of the Subordinate Judge and contends that having got possession of the 6 bighas odd in suit under the lease of the 6th of May 1903, he has acquired in the lands a non-occupancy right and that thus by virtue of Article J, Schedule III, of the Bengal Tenancy Act he is not liable to be ejected; inasmuch as the landlord, namely the plaintiff, did not institute the present suit to recover possession within six months from the date of the expiration of the lease. The lease expired on the 31st of May 1912 and the suit was instituted on the 5th of December 1912; and thus the six months'' limitation allowed under Article 1 of Schedule III of the Bengal Tenancy Act expired on the 1st of December 1912. Consequently if the first contention put forward by the defendant No. 1 is right, the plaintiff was late by four days in instituting this suit and, therefore, his right to recover possession would be time-barred. The second contention put forward by defendant No. 1 is that the lands are not the zerait lands of the plaintiff or his predecessors-in-title and that in fact defendant No. 1 has acquired occupancy rights in the 6 bighas odd sought to be recovered in this ejectment suit. I think, however, that very little turns upon the second point, inasmuch as the findings of fact by both the Courts below conclusively establish that the lands were, prior to the 2nd of March 1883, zerait lands, that is to say, lands in the possession of the owners and cultivated by them or their servants. The learned Subordinate Judge at page 14 of the paper-book bases his finding upon the oral evidence of witnesses who deposed to the fact that the lands were zerait and he says in his judgment: There is oral evidence that before 1884, the date of the sale of 4-g. share, the proprietors were in khas cultivation of the entire land, 6-g. 13-f. share, for seven years and before it for eight or ten years and lastly for fifteen or sixteen years when Khedu was joint with his brother." Likewise the learned Munsif bases his judgment upon the testimony of some of the witnesses of the plaintiff who deposed that the whole 12 bighas and odd land of which the land in suit formed a part was in fact khudkasht from before the purchase of the share by Mahant Lal Das, i.e., from before the year 1884." Thus the learned Munsif and the learned Subordinate Judge based their findings of fact upon the oral evidence of the witnesses who deposed to what they themselves saw and knew was the condition of the lands in suit prior to the year 1884. The learned Munsif and the Subordinate Judge to a certain extent placed reliance upon the recital in the kabuliyat executed by defendant No 1 in May 1903 wherein the lands were described as zerait, and also upon a decree referred to as Exhibit 3 in these proceedings. In my opinion both the Courts were entitled to consider and look at, not only, the recital in the kabuliyat, but also the decree, and to attach some weight to the description given of the land in the recital in the kabuliyat. But having regard to the provisions of Sub-section 2 or Section 120 of the Bengal Tenancy Act the weight to be attached to any such recital must be small; but yet it has some evidential value. The main argument addressed to me has been based upon the proposition or assumption that defendant No. 1 could acquire in the zerait lands of the plaintiff zemindar a non-occupancy right; and that thus the landlord was bound to eject him within six months from the date of the expiration of the lease under the provisions of Article 1 of Schedule III of the Bengal Tenancy Act. Sir Ali Imam, who appeared on behalf of the plaintiff, has addressed to me a very forcible argument on the construction to be put upon Section 116 of the Bengal Tenancy Act. His argument mainly is that in the zerait lands of a landlord or zemindar no right of occupancy or non-occupancy can be acquired; and he relies strongly upon the title given to Chapter XI by virtue of Section 39 of the Bengal Tenancy (Amendment) Act of 1907 and that title is non-accrual of occupancy and non occupancy rights." Sir Ali Imam contends that in lands which are termed zerait or kamat no right of occupancy or non-occupancy can be acquired and that Article of Schedule III has no application whatever. Article 1, Schedule III, Sir Ali Imam contends, only applies to cases where the right of occupancy can exist; but in the present case, he contends that by reason of the lands being zerait defendant No. 1 could not in law possibly acquire the status of a non-occupancy ratyat having regard to the construction which, he contends, must be put upon Section 116 of the Act. He relies in support of his argument upon the decision reported as Dwarkanath Chowdhury v. Tafazar Rahaman Sarkar 39 Ind. Cas. 64 ; 20 C.W.N. 1097 ; 44 C. 267. The point was there considered and decided by Mr. Justice Newbould, who held that a non-occupancy right could be acquired in the zerait lands of a zemindar; and that there was nothing in Section 116 to prevent such rights being acquired. That case went before two distinguished Judges of the Calcutta High Court, viz., Woodroffe and Chaudhuri, JJ., on Letters Patent Appeal, and they both came to the conclusion that the learned Judge was wrong and that in respect of zerait lands no rights of occupancy or non-occupancy could be acquired. They accordingly reversed the decision pronounced by Mr. Justice Newbould sitting alone and held that the suit in the case was not barred by the operative effect of Article 1 of Schedule III of the Bengal Tenancy Act; and the basis of their judgment is that in zerait lands non-occupancy rights cannot be acquired.

Certainly the wording of Section 116 itself lends the strongest possible support to that view; because it appears to my mind clear that to hold that occupancy rights or non-occupancy rights can be acquired in zerait lands would be to do violence to the language, scope, object and intention of, Section 116 of the Bengal Tenancy Act. In the case reported as Sheo Nandan Roy v. Ajodh Roy 26 C. 546 ; 3 C.W.N. 336 ; 13 Ind. Dec. 950 it has been laid down in express terms that Section 116 of the Bengal Tenancy Act applies even in a case where a person is brought on the malik''s zerait land as a raiyat by a lessee for a term of years; and that, therefore, such a person cannot acquire any right of occupancy or non-occupancy in the said land; and being a trespasser only, on the expiry of the lease is liable to be ejected. And at page 551 their Lordships lay down that in respect of zerait lands the zemindar is entitled to the protection afforded by the section against his property being burdened with occupancy or non occupancy rights in favour of the classes of raiyats specified in Chapters V and VI. These decisions constitute a considerable weight of authority in favour of the view that the class of lands known as zerait are excepted from any of the provisions of Chapters V and VI and expressly negative the acquisition of occupancy or non-occupancy rights therein. Mr. Kulwant Sahay himself argued in the Calcutta High Court the very same contention now put forward by Sir Ali Imam in this case in a case reported as Ganpat Mahton v. Rishal Singh 38 Ind. Cas. 978 ; 20 C.W.N. 14. His argument did not carry conviction, home to the minds of their Lordships who decided that case; and they, not so much as a matter of decision, but more as of dictum, laid down that in zerait lands non-occupancy rights might be acquired; and that that being so, Article 1 of Schedule III became applicable inasmuch as Article 1 of Schedule III was merely a substitute for the old Section 45 of Chapter VI. Their Lordships say at page 18: Pages of 20 C.W.N. 45 has now been repealed and has been replaced by Article 1(a) of Schedule III. There can be no question that the defendants, even if they had been tenants of zerait lands, would be non-occupancy raiyats though by virtue of Section 116, the special provisions of Chapter VI might not have applied to them. But the operation of Article 1(a), of Schedule III is not excluded by Section 116 in the case of zerait lands. Consequently, if the lands were proved to be zerait, the plaintiffs would be bound to institute this suit within six months from the 4th June 1909; but it was not commenced till the 16th September 1910. The suit is consequently clearly barred by limitation." This case was decided by Mr. Justice Mookerji and Mr. Justice Beachcroft, two distinguished Judges of the Calcutta High Court, and their decision was given in June 1914. The other case, reported in the same Volume at page 1097 Pages of 20 C.W.N.--Ed. [Dwarkanath Chowdhury v. Tafazar Rahaman Sarkar 39 Ind. Cas. 64 ; 20 C.W.N. 1097 ; 44 C. 267.], to which I have referred, was a decision of two equally distinguished Judges of the same Court given two years later, namely, in May or June 1916. The most extraordinary feature of these cases is that the decision of Mookerji and Beachcroft, JJ., was never referred to in the course of the argument before Woodroffe and Chaudhuri, JJ. If it had been cited to them how far it would have affected their judgment I cannot say; but the fact remains that there is a great conflict between these two decisions. We have two Judges of one Court deciding the question in one way and two other Judges of the same Court deciding the same question in a different way--one decision is inconsistent with the other; and Mr. Kulwant Sahay admits that this is so. However, I propose to rely upon the decision of Woodroffe and Chaudhuri, JJ., because it seems to me that the point which arises for determination before me was raised before and decided by them; whereas in the other case, having regard to the findings of the learned Judges, it seems to me that the point was dealt with more from the point of view of academical interest than as a matter for decision. Accordingly I prefer to follow the decision of Woodroffe and Chaudhuri, JJ., and I hold that in this case defendant No. 1 could not, in point of law, acquire in the zerait lands of the plaintiffs a non-occupancy right; and that thus the landlord is not barred in instituting this suit by the limitation provided by Article 1 of Schedule III of the Bengal Tenancy Act. Consequently the suit is maintainable and the plaintiff is entitled to the decree which has been given him for the ejectment of defendant No. 1. I, therefore, disallow this appeal with costs in this Court, in the lower Appellate Court and in the Munsif''s Court.