Kesho Prasad Singh vs Jagdeo Lal

Agarwala, J.—This appeal arises out of a suit by the Maharaja of Dumraon for recovery of possession of certain naubarar diara lands and for mesne profits.

The plaintiff''s case was that the lands in suit had been settled with the defendants by a registered patta and kabuliyat for a fixed terra which had expired and that the defendant had refused to give up possession. The lease was executed on 1st December 1919 for a term of years from 1325 to 1331. The lease recites that the lands are the Malik''s zerat diara lands and that the lessee had been in occupation for rather more than one year before the execution of the lease. This period however is included in the period for which the lease was executed.

The defence in the suit was that the defendant had been in possession for more than twelve years before the execution of the patta and kabuliyat and had thus acquired occupancy rights. Both the Courts have found that the defendant had not acquired occupancy rights. The trial Court held that the possession of the defendant commenced at the date of the kabuliyat and decreed the plaintiff''s suit with mesne profits. In appeal by the defendant the learned Subordinate Judge held that the lands had been proved to be zerat lands of the Malik, and that the defendant had been in occupation of them before the execution of the kabuliyat. Applying Section 47, Ben. Ten. Act, to the facts of the case the learned Judge reversed the decree of the trial Court, but without coming to a definite finding as to the nature of the defendant''s occupation for the period prior to the execution of the lease.

The plaintiff has preferred the present second appeal, and it is contended on his behalf by Mr. Sushil Madhab Mullick that the disputed lands are zerat and that Section 47, Ben. Ten. Act, has no application to the facts of the present case.

The finding of the appellate Court that the lands in dispute are not zerat lands is conclusive in second appeal and cannot now be challenged. As to the second point, the lease in the present case was a registered lease for a term of years and, ordinarily therefore the defendant would be liable to ejectment on the expiry of the term in accordance with the provisions of Section 44(c), Ben. Ten. Act, provided he had been admitted to occupation under the lease. But the defendant relies on Section 47 which provides:

Where a raiyat has been in occupation of land and a lease is executed with a view to a continuance of his occupation, he is not to be deemed to be admitted to occupation by that lease for the purposes of this chapter, notwithstanding that the lease may purport to admit him to occupation.

It is contended on behalf of the defendant that he was in occupation of the lands prior to the execution of the lease and therefore that he is not liable to ejectment u/s 44(c). The appellant however contends that even if the defendant was in occupation prior to the execution of the lease, he was not in occupation as a raiyat and therefore that Section 47 has no application, and in support of this contention reliance is placed on the decision in Rajani Kanta Mukherjee v. Yusuf Ali (1917) 34 IC 92 and on a decision of a Division Bench of this Court in Kesheo Prasad Singh Vs. Ram Baran Chaubey, . As has been observed already, the appellate Court has not come to a definite finding as to the nature of the defendant''s occupation prior to the execution of the lease and ordinarily it would be necessary to send the case back to that Court for a finding on this point.

But in the present instance the facts found in the judgment enable us to come to a conclusion on this point. It appears that prior to the execution of the lease the defendant had been asserting that he was a tenant of the lands; he had deposited rent for the land; and the lease itself includes within the period for which it purports to create the tenancy at least a part of the period for which the defendant had previously been in occupation. It appears to us that the proper inference to be drawn from these circumstances is that the occupation of the defendant prior to the execution of the lease was occupation as a raiyat.

The case of Rajani Kanta v. Yusuf Ali (1917) 34 IC 92, referred to above, was remanded by the High Court for a finding whether the lands covered by the kabuliyats were lands of which the lessees had previously been in occupation. In Kesheo Prasad Singh Vs. Ram Baran Chaubey, , which has been relied on by the appellant, the lessee failed to establish that he was a raiyat prior to the execution of the kabuliyat. The decision in these cases therefore are of no assistance to the appellant.

In view of our finding that the defendant was not let into occupation by the lease it follows that Section 44(c), Ben. Ten. Act, does not apply to the facts of the case.

The result is that the appeal is dismissed, the decision of the appellate Court is confirmed and the suit dismissed with costs throughout. We would point out that, where, in cases of the present description, Section 47, Ben. Ten. Act, is sought to be applied, it is essential that the Courts of fact should come to definite findings as to the time when the occupation of the tenant commenced and as to the nature of that occupation.

Rowland, J.

I agree.