Kariman Ahir and Others vs Nirmal Kumar and Another

Das, J.—The question which I have to determine in this appeal is whether the appellants have acquired a right of occupancy in Khasra plot No. 434. The lower Appellate Court has come to the conclusion that the appellants are the tenants in respect of the plot No. 434, but that they have not acquired a right of occupancy therein. In the result, the lower Appellate Court refused to make a declaration that plot No. 434 is the guzashta land of the plaintiffs appellants, but did make a declaration that the plaintiffs are the tenants in respect of plot No. 434 and are entitled to remain in possession thereof. The plaintiffs have appealed, and on their behalf it has been argued that the lower Appellate Court should have held that they have acquired a right of occupancy in respect of plot No. 434. The respondents have filed a cross-appeal and they challenge the finding of the lower Appellate Court that the appellants are their tenants in respect of that land.

It will be convenient to deal with the cross-appeal first. The lower Appellate Court has arrived at the following findings of facts:

(1) The disputed land is claukidar''s chakran land.

(2) The plaintiffs'' father was the chaukidar in possession of the land in dispute, but that the defendants have accepted rent from him and have treated him and the plaintiffs as their tenants.

(3) There were resumption proceedings in respect of the land under the Chaukidari Act, and the Government transferred the land to the defendants.

It was argued on behalf of the respondents that on these findings the lower Appellate Court should have held that the plaintiffs are mere trespassers and are liable to be ejected as such. They contend that they are not hampered by any recognition of tenancy before the resumption proceedings, inasmuch as their title to the land accrued only after the resumption proceedings, when the Government transferred the land to them. They say that upon such transfer they were entitled to hold the land as their zerait land, and that they were at liberty to do so, notwithstanding the fact that they may have recognized the appellants as their tenants at a time when they had no title to the land.

This argument, in my opinion, is entirely unfounded, for it rests on the fallacy that the title to the land in dispute accrued to the defendants upon transfer of the land to them by Government. The nature of chaukidari chakran lands was the subject of very careful investigation in the case of Joykishen Mookerjee v. Collector of East Burdwan and Brijo Roy Thareedar 10 M.I.A. 16 : 1 W.R.P.C. 26 : 1 P.C.J. 542 : 2 P.C.J. 54 : 19 E.R. 879. That case has always been recognised as establishing that the title of the Zemindar to the chakran land was always there and that it remained unaffected by the fact that such land was appropriated to the maintenance of an officer who performed, and was liable to perform, duties as a village watchman. Originally these duties were rendered solely to the Zemindar, who, instead of paying wages to the chaukidar, made a grant of some land to the chaukidar for his maintenance. It was recognized later that the general public as well as the Zemindar was interested in their services, and, therefore, by various Regulations the chaukidars were made removeable by the Magistrate, but, as the Judicial Committee points out there is "nothing in these Regulations which takes from the Zemindar the right of nomination of these officers, or which deprives him of the power of himself removing them and appointing other fit persons in their stead, and nothing which deprives him of the right of requiring from the chaukidar such services as he was bound by law or usage to render to the Zemindar." It must also be remembered that by Section 41 of Regulation VIII of 1793, the whole of these chakran lands were declared as annexed to the malguzari lands and responsible for the public revenue. In other words, the antecedent title of the Zemindar in these lands was recognized in the Regulation of 1793, and, in my opinion, having regard to that Regulation and the long series of cases decided by the Calcutta High Court [see Kazi Newaz Khoda v. Ram Jadu Dey 34 C.109 : 11 C.W.N. 201 : 5 C.L.J. 38 it is now too late in the day to argue that the title of the Zemindar to these lands accrues only on the transfer of such lands to the Zemindar after the resumption proceedings.

It was argued, however, on the basis of Shaikh Jonab Ali v. Rakibuddin Mallik 9 C.W.N. 571 : 1 C.L.J. 303 that upon the transfer of such land to the Zemindar, such land was at the disposal of the Zemindar, and could be treated by him either as his mal land or zerait land. That undoubtedly is so, but, in my opinion, having elected to treat the land as his mal land, he cannot turn round and pay: "The land is now at my disposal, and I shall treat it as my zerait land." The argument would have great force if it could be shown that he had no title to the land at the time when he treated it as his mal land. But that is not my view, and I am supported by the language employed by the Legislature in Section 51 of the Village Chaukidari Act, where the Legislature has said as clearly as it knows how to say that the transfer to the Zemindar will be subject to all contracts made before such transfer by virtue of which any person other than the Zemindar may have any right to such land. In my view, Section 51 of the Village Chaukidari Act recognizes two principles which are absolutely destructive of the elaborate argument advanced before Mr. Mullick on behalf of the respondents. It recognized, first of all, the antecedent title of the Zamindar to these lands, and it recognizes, secondly, the validity of the antecedent contracts entered into by the Zemindar respecting these lands. Contract of tenancy is one of the contracts within the scope of Section 51, and, therefore, I am of opinion that the lower Appellate Court, on the facts found by it, was right in coming to the conclusion that the appellants were not trespassers and were not liable to be ejected as such.

I will now deal with the appeal. A right of occupancy is purely a statutory right, it is not a contractual right. Therefore, a right of occupancy is not saved by Section 51 of the Village Chaukidari Act. But the appellants argue that they have been in occupation of the land in dispute as tenants for over twelve years, and, therefore, they have acquired a right of occupancy by Statute. In my opinion, this argument is not well founded. A right of occupancy is a sight conferred by the Bengal Tenancy Act, and Section 181 of that Act provides that nothing in that Act shall affect any incident of a ghatwali or other service tenure. It is true that the incidents of a ghatwali or other service tenure are not dealt with in the Bengal Tenancy Act, but if it can be established that one of the incidents of a service tenure is that rights of occupancy cannot be acquired therein, then there cannot be any doubt that a right of occupancy, being a right conferred by the Bengal Tenancy Act, cannot be acquired in the land in dispute.

It seems to me that on principle a chaukidar cannot acquire a right of occupancy in chakran lands. Chakran lands are held on condition of service, and occasionally a small rent is also paid by the chaukidar. Now, if it were possible for him to acquire a right of occupancy in such land, he could after twelve years'' possession refuse to perform any services and yet claim to retain the land. The question was raised in the case of Hurrogobind Raha v. Ramrutno Dey 4 C. 67 : 2 Ind. Dec.44 but was not decided. But Girth, C.J., in that case said: We are very much disposed to think that if the defendants held by a service tenure they could not acquire a right of occupancy: However, it is not necessary to decide that point in this case." But in the case of Upendra Nath Hazra v. Ram Nath Chowdhry 33 C. 630 Maclean, C.J., held that a right of occupancy could not be acquired in a service tenure. He said: "I think that upon principle, having regard to the nature of ghatwali lands, the acquisition of occupancy rights in these lands is inconsistent with the incidents of such tenures; and this view gains support from Section 181 of the Bengal Tenancy Act, which seems to me to be inconsistent with the view of the acquisition of such rights in ghatwali lands. This conclusion seems to be in accordance with Mr. Justice Mitra''s view on the point expressed in the case cited, that any such right is not susceptible of acquisition in the ghatwali lands." In my opinion, it is clear both on principle and authority that so long as the lands retained the character of chakran lands, the appellants could not acquire a right of occupancy in such lands. I think, therefore, that, upon the facts found by the lower Appellate Court, it was right in coming to the conclusion that the appellants have not acquired a right of occupancy in plot No. 434, Both the appeal and cross-appeal, therefore, fail and they must each be dismissed with costs.