Kamakhya Narayan Singh vs Bechu Singh and Another

Ross, J.—This is an appeal against the decree of the Judicial Commissioner of Chota Nagpur, substantially reversing a decision of the Subordinate Judge in a suit brought by the plaintiff-appellant for a declaration that the defendant-respondents are not entitled to retain possession of Mauza Khuntikewal Khurd and for ejectment and mesne profits. The Subordinate Judge gave the plaintiff a decree; and this was contested before the Judicial Commissioner only in respect of certain raiyati lands, the original claim of the defendants to the entire village having been given up, and it was with respect to these raiyati lands that they were successful in that Court. The question in appeal is as to the status of the defendants in respect of these lands which they claimed to be their raiyati lands.

The earliest document on the record is Ex. C, a lease executed in the year 1857 by Raushan Lal, the jagirdar under the Ramgarh Raj in favour of the defendants'' predecessor, Chaudhuri Ramnath Singh. This was a lease from 1914 to 1923 Samba and demised for the year 1914, 25 bighas of land and nine mahua trees and, for 1915 to 1923 the entire mauza including the cultivated and uncultivated lands. It was stipulated that the lessee should cultivate the village, keep the tenants contented, settle himself and cause tenants to settle therein; and it was further covenanted that in the event of the rent being paid till the term of the lease, after the expiry of the term the settlement would be made at a proper increased rent for a certain term with the same lessee and no other. In 1873 Raja Ram Narayan Singh obtained the Ramgarh Raj by a suit and in 1877 he made a khorposh grant of Mauza Khunti Kewal to his youngest brother Hit Narayan Singh who died without heirs in 1913. On the death of Hit Narayan Singh, the village was resumed and the question is whether the resumption entitles the plaintiff to enter on the lands now in suit. In 1883 there was a suit for rent brought by Hit Narayan Singh against the defendants'' predecessor. There was an issue in that suit as to the defendants'' right in the village and the Court held against their raiyati title. But it was conceded that this decision is not res judicata, because the Rent Suit Deputy Collector who decided that suit had no jurisdiction to entertain the present suit. It may be mentioned that that suit was brought for rent due under a lease for a term of five years from 1936 to 1940. In 1884 a kabuliyat was executed by the defendants'' predecessors in favour of Hit Narayan Singh for a term of five years in which it was stipulated that they would not put forward any claim to kharwat, khutkatti, sujwat or raiyati jote after the term of the lease. In 1895 a lease was granted to one Lutbaran Singh for a term of five years who in his turn granted a sub-lease to the defendants'' predecessor. This lease contained a similar clause disclaiming raiyati rights. In the Record of Rights in 1915 the defendants'' predecessor was entered as bemiadi thicadar. In 1917 the Raja obtained a rent decree and thereafter served notice to quit.

The learned Judicial Commissioner has referred to the final report on the settlement operations in the District of Hazaribagh, paras. 185. 189 as to the meaning of the term "thicadar"; but it is not clear what relevance this has to the present case in view of the finding of the Subordinate Judge, which has not been dissented from by the Judicial Commissioner, that the defence that the village had been reclaimed by the defendants'' ancestor was untrue. There is no question in this case of a village headman or of a reclaiming lease. Exhibit C is a plain and ordinary thica lease; and I do not agree with the learned Judicial Commissioner in his view that this lease expressly contemplates permanency of tenure. On the contrary, it is only a lease for a term of years with a covenant for renewal at an increased rent; but that in itself does not import any idea of permanence. Learned Counsel for the respondents referred to the fact that although there have been several leases for terms of years between 1857 and the present day, there were long periods when the defendants or their predecessors were in possession without a lease, as for instance from 1889 to 1895 and from 1901 to 1923. It is not disputed that during these periods they were liable for rent at the rate in the last lease; and they must be taken to have been holding over on the same terms as the lease contained.

The learned Judicial Commissioner has taken the view that the lease of 1857 was a cultivating lease in respect of 25 bighas and that this was the nucleus of the present holding of 168 bighas; but how the 25 bighas developed into 168 bighas there is nothing to show. The Record of Rights does not record the defendants as occupancy raiyats in respect of 168 bighas; on the contrary it records them as bemiadi thicadars. Now the plaintiff has shown the origin of this tenancy in 1857 and that it was a miadi tenancy for a term of years. In my opinion it is not a true construction of Ex. C to hold that it is a cultivating lease in respect of 25 bighas. It is a single lease for the whole village; and the right that is conferred over the 25 bighas in 1914 Sambat is the same as the right which is conferred over the whole village for the rest of the term. It is, in my opinion, a pure tenure and, in fact, this is the view which was taken in the Record of Rights. Exhibit C does not entitle the defendants to hold as raiyats and consequently they could not acquire occupancy rights so long as the lease continued: Thomas Savi v. Punchanun Roy 25 W.R. 503, Raghubar Mahto v. Manners 11 Ind. Cas. 389.:13 C.L.J. 568 and Manners v. Satroghan Das 36 Ind. Cas. 178 : 20 C.W.N. 800. The covenant not to claim raiyati right was a valid covenant at the time it was made. It was contended on behalf of the respondents that they were settled raiyats of the village and that this covenant cannot get rid of that status which entitled a settled raiyat to occupancy right in any land settled with him. But occupancy right could only be acquired by a settled raiyat in lands settled with him as a raiyat, and this contention does not advance the case for the defence. In my opinion defendants were tenure holders holding under a lease for a term of years and acquired no occupancy rights in the land in suit.

The appeal must, therefore, be decreed and the decree of the Judicial Commissioner set aside and that of the Subordinate Judge restored. The appellant is entitled to his costs of this Court and of the Court of appeal below.

Das, J.

I agree.