Kamakshya Narain Singh vs Hiro Mahton and Others

Reuben, J.—The plaintiff-appellant is the proprietor of the Ramgarh Raj, an estate in the District of Hazaribagh. In his suit, which has been dismissed by the learned Additional Subordinate Judge of Hazaribagh, he sued for the recovery of possession of the mauza Palamau in pargana Rampur and for mesne profits. In the record of rights the mauza is shown as the non-resumable khunt-katti tenure of defendants-respondents or their ancestors under the Ramgarh Raj. The case of the appellant is that the settlement entry is incorrect, and that the mauza was held in istimrari mokararri by Chetnath Mahton and Kani Mahton, ancestors of the defendants-respondents, and lapsed to the Ramgarh Raj on the death of the survivor of these two persons on 2lst November 1930. The learned Subordinate Judge accepted the plea of the defendant-respondents that they are permanent tenure-holders under a non-resumable tenancy and dismissed the suit.

Pour points have been raised before us in appeal: (1) the jurisdiction of the civil Courts to entertain the suit; (2) whether the entry in the record of rights is conclusive under the provisions of Section 132, Chota Nagpur Tenancy Act; (3) if the record is not conclusive, whether on the evidence it is proved that the tenure is a non-resumable one and the appellant is entitled to resume it; (4) whether khunt-katti rights can extend to land which is still unreclaimed jungle. Section 258, Chota Nagpur Tenancy Act, provides that:

Save as expressly provided in this Act, 110 suit shall be entertained in any Court to vary, modify or set aside, either directly or indirectly, any decision, order or decree of any Deputy Commissioner or Revenue-officer in any suit, application or proceeding... under Chap, 13, 14, 15, 16 or 18 except on the ground of fraud or want of jurisdiction and every such decision, order or decree shall have the force and effect of a decree of a civil Court in a suit between the parties and, subject to the provisions of this Act relating to appeal, shall be final.

A perusal of the plaint in this case will show that the correctness of the entry in the record of rights is challenged on the ground that the proceedings under Chap. 15, Chota Nagpur Tenancy Act, relating to "record of rights and obligations of raiyats having khunt-katti rights, village-headmen and other classes of tenants" were without jurisdiction. Hence, the civil Courts have jurisdiction to entertain this suit. This disposes of the first point. The application of Section 132, Chota Nagpur Tenancy Act, to the record of rights in this case is challenged on the ground that the proceedings of the revenue authorities under chap. 15 of the Act were without jurisdiction. The contention is two-fold (1) that the notification u/s 127, from which the revenue authorities derive their authority to proceed under Chap. 15 did not relate to mauza Palamau and (2) that the Tenancy Act does not recognize any such class of tenants as khunt-katti tenure-holders and therefore the revenue authorities acted without jurisdiction in recording such a tenancy. The notification u/s 127, Chota Nagpur Tenancy Act, says that

the Lieutenant-Governor of Bengal is pleased to direct that a record be prepared of the rights and obligations of raiyats having khunt-katti rights or of any other class of tenants in the areas included within the external boundaries of thanas Ramgarh, Mandu, Gumian, Kasmar and Dumurhi in the District of Hazaribagh and that a settlement be made of fair rents to be paid by such raiyats. (By some mistake the words in italics have been omitted in the paper-book).

The case of the defendant-respondents that mauza Palamau is in thana Dumurhi has been accepted by the learned Subordinate Judge. The contention of the appellant is that mauza Palamau is in thana Nawadih and therefore this notification did not relate to mauza Palamau at all. In support of this contention a reference is made to a notification dated 29th May 1905, published in the Calcutta Gazette of 8lst May 1905, (EX. 5). This notification relates to police jurisdiction, and shows that an area formerly constituting Nawadih Independent Outpost was declared to be Nawadih police station. In this area, one of the villages is mauza Palamau with which we are concerned. It is interesting to note that this notification shows that this area was formerly included in "Doomri" police station. The other papers relied on for this contention are certain settlement records Exs. E (1), E (2), E (3), G and D showing mauza Palamau as included in thana Nawadih. These records were prepared subsequently to the notification u/s 127, which was issued in the year 1909. They merely show that in the course of the settlement proceedings mauza Palamau was described as included in thana Nawadih and was given a corresponding thana number namely, 28. At the same time, however, we find in the final report of the settlement operations in the district of Hazaribagh, published as long afterwards as the year 1917, a specification of thanas and police stations in para. 2 at p. 2, in which Dumri thana is shown as including three police stations namely, Dumri, Pirtand and Nawadih. It is clear that there is some confusion here between the two senses in which the word, thana is used, namely, either as indicating a revenue unit of area or a police station. I have no doubt that in the notification u/s 127, the word is used to indicate the revenue unit, and that it included the area which, in the settlement records, is described as Nawadih thana. The fact that mauza Palamau, which at the time of the notification would be spoken as being in thana Dumri, was, during the course of the settlement operations, described as being in thana Nawadih would not make the notification any the less applicable to mauza Palamau. I think that the learned Subordinate Judge has rightly rejected this contention.

The contention that there is no class of tenants recognised by the Tenancy Act as khunt-katti tenure-holders is based on Sections 4 and 7, Chota Nagpur Tenancy Act. Section 4 enumerates four classes of tenants, namely, (1) tenure-holders, including under-tenure-holders, (2) raiyats, namely, (a) occupancy raiyats, (b) non-occupancy raiyats and (c) raiyats having khunt-katti rights; (3) under-raiyats, and (4) Mundari khunt-kattidars. It is urged that the enumeration of classes of tenants in Section 4 is exhaustive and that, in view of the definition in Sub-section (1) of Section 7, only raiyats can have khunt-katti rights. This argument overlooks Sub-section (2) of Section 7 which says:

Nothing in this Act shall prejudicially affect the rights of any person who has lawfully acquired a title to a khunt-kattidari tenancy before the commencement of this Act.

This Sub-section clearly recognises the possibility of there being khunt-katti tenants other than raiyats having khunt-katti rights. The existence of khunt katti tenure-holders is not inconsistent with the Act, and was recognized by the settlement authorities: vide paras. 186 to 190 of the final report of the settlement operations in the district of Hazaribagh. It has also received judicial recognition in Jeo Lal Singh v. Wazir Narain Singh. AIR 1921 Pat. 426 and Degan Mahto and Others Vs. Kumar Kamakhya Narayan Singh and Others, . For the purposes of this case, it is not necessary to decide whether the list of classes of tenants in Section 4 is exhaustive, for, it is possible to hold that khunt-katti tenure-holders are merely a sub-class of the ''first class of tenants, namely, tenure-holders.

There is, however, judicial authority for the proposition that this list is not exhaustive, Jeo Lal Singh v. Wazir Narain Singh. AIR 1921 Pat. 426 . On the above grounds, the contention that the proceedings of the revenue authorities under Chap. 15 of the Act were without jurisdiction fails, and the necessary consequence is that the record of rights prepared by them is conclusive u/s 182 of the Act. It is, therefore, not open to this Court to go behind that entry and to question its correctness; but we can interpret the entry. Here, we are concerned with the portion of the entry which relates to resumability. Mr. Jha on behalf of the appellant has urged that the entry "non-resumable" is not inconsistent with the plaintiff''s case, because, according to that case, the tenancy became resumable only long after the preparation of the settlement record, that is, when the survivor of the two tenants with whom the istimrari mokararri settlement had been made died. In my opinion, there is no substance in this argument. The term "non-resumable" must be interpreted in the light of the definition of resumable tenures contained in Clause (24) of Section 8, Chota Nagpur Tenancy Act, which is in the following terms:

Resumable tenure'' means a tenure which is held subject to the condition that it shall lapse to the estate of the grantor and be resumable by him or his successor in title--(a) on failure of male heirs of the body of the original grantee in the male line, or (b) on the happening of any definite contingency other than that referred to in Sub-clause (9a) of this clause:

It follows that the entry "non-resumable" must mean that the tenure does not lapse to the estate of the grantor either on the failure of male heirs or on the happening of any other definite contingency. In the face of this entry, therefore, it is not open to the appellant to say that the tenancy lapsed on the death of the grantees under the istimrari mokararri patta. On the above grounds, the second point must be decided against the appellant and his appeal fails. In view of the above finding it is not necessary to consider the third and fourth points. I shall, therefore, only deal with them briefly. Supposing Section 132, Chota Nagpur Tenancy Act, to be inapplicable to the settlement record, the statutory presumption of its correctness would still attach to the record u/s 84 of the Act, and the onus would be on the plaintiff to prove that the record was incorrect. The defendants are the descendants of one Baijnath who, according to them, was the original founder of the village. The appellant has filed five documents showing periodical settlements with the descendants of Baijnath:

(See extract of documents on page 351.)

These are old documents, the genuineness of which is not challenged. I have not stated the rent fixed according to these settlements, because we are not concerned with the details. It is sufficient to mention that the rent increased gradually from the earliest document to the latest. All these documents were produced before the settlement authorities, and in spite of them the settlement authorities made the entry in the record that the tenure was a khunt-katti one and non-resumable. The manner in which these documents were

Exhibit Date Lessee Nature of Period. No. Settlement 1 (a) 4-7-1815 Jagarnath son of Baijnath Mahatwai 1872-1874 Sambat 1 (d) 30-3-1838 Jagarnath son of Baijnath Ijara 1895-1899 Sambat 1 (c) 22-7-1845 Chetnath grandson of Ijara 1902-1906 Baijnath Sambat 1 (b) 13-9-1855 Chetnath grandson of Ijara 1915-1919 Baijnath Sambat 1 31-1-1866 Chetnath and Kani Ram, Istimarai Mokararri From 1923 Sam son of Chetnath bat onwards.

regarded by the settlement authorities is clear from the entry in the remarks column of the khewat (Ex. D), namely, that the rent of the tenure was settled by a mokararri patta executed by Raja Ram Narain Singh in favour of Chetnath Mahton and Kani Ram. In this connexion, a reference may be made to the order of the Assistant Settlement Officer in tanaza No. 110 (Ex. E (3)). This action, of the settlement authorities was in accordance with Section 133, Chota Nagpur Tenancy Act, which provides that in making inquiries under Chap. 15 "the revenue officer shall have regard to the origin and nature of each tenancy and to the real status of the tenant, notwithstanding that the tenant may have been described in any document as a thikadar or temporary lease-holder or in any other similar terms."

The principle laid down in this section is not a new one. In order to determine the nature of a tenancy it is necessary to ascertain the terms under which the tenancy is held, and not to be guided merely by descriptions of the tenancy contained in documents executed subsequently to its inception. The nature of khunt-katti tenures is explained clearly in paras. 186 to 190 of Sifton''s settlement report of Hazaribagh. In para. 190, Mr. Sifton states that, though the khunt-katti tenure was recognized as a permanent tenure by custom, it had not originally the attribute of fixity of rent, and it was recognized that a landlord had the right to make periodical enhancements. He goes on:

A number of such tenures were found among the mukarrari istamrari villages in the south of the district. In their case it was noted in the record of rights that the nature of the tenure was khunt-katti and it was not liable to resumption and the effect of the mukarrari patta was only to give fixity to the rent payable.

These remarks are entirely applicable to the (tenancy with which we are concerned in this case. A khunt-katti tenancy is a tenancy for the reclamation of jungle areas. If the khunt-katti tenants were not to be discouraged, the rent in the initial stages had to be a low one. As more and more land was reclaimed, it was fair that there should be an increase in the rent assessed. The mere fact that from time to time the khunt-katti tenure-holder agreed to such increases of rent, coupled with the description of the tenure as ijara or istimrari mokararri in the documents fixing the rent, would not alter the nature of the tenancy and its liability or non-liability to resumption. In this connexion, I may also refer to the description of the tenancy in the first of these documents (Ex. 1 (a)), namely, mahatwai, which according to Sifton''s settlement report, para. 187, is one of the names by which the interest of a khunt-katti tenure-holder is known. On the above grounds, I think, these documents are insufficient to prove that the tenancy was one liable to resumption on the death of Chetnath Mahton and Kani Mahton. The only other documents referred to before us consist of entries in the awarza register of the Raj, Exs. 2, 2 (a), 2 (b) and 2 (c), showing Chetnath and Kani Mahton recorded as ilaka-dars. This is merely a document of the landlord himself and can prove nothing against the tenant. The contention that khunt-katti rights can extend only to reclaimed land is based on the definition of a khunt-katti raiyat in Sub-section (1) of Section 7 of the Act as being

a raiyat in occupation of, or having any subsisting title to, land reclaimed from jungle by the original founder of the village or their descendants in the male line, when such raiyat is a member of the family which founded the village or a descendant in the male line of any member of such family.

This definition applies to the raiyati tenancy only. There is no reason why it should be applied also to a tenure-holder''s interest. The origin of the tenure-holder''s interest is described in paras. 186 to 190 of the Hazaribagh settlement report and shows that different considerations apply to such tenures. The interest was the interest of a person engaged in bringing an area of jungle land under cultivation either by his own labour or by settling tenants upon it. Whatever might be the nature of the right of the tenants settled by him on the land, there was no reason why his own interest should be confined only to the lands actually reclaimed. This disposes of the fourth point.

In the result I would dismiss this appeal with costs.

Fazl Ali C.J.

I agree.