Komalchand vs State

T.P. Naik, J.—This first appeal has been filed by the Plaintiff against the judgment of the 2nd Civil Judge, Saugar, delivered on 29-9-1956, dismissing his suit.

One Gulabchand was the Malguzar and Lambardar of Patti No. 1 in Mouza Mara Imaliya. The Plaintiff-Appellant is the son of the said Gulabchand who had another son by name of Santosh Kumar. The Plaintiff''s case is that on 5-6-1946 the lands in dispute were given by the Lambardar Gulabchand to his son Santosh Kumar in occupancy rights. At that time, the lands were under grass and were recorded as chhotoghas in the village papers. After the alleged gift, the lands were recorded in occupancy rights in the name of Santosh Kumar. At the time when the proprietary rights were abolished under the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (No. 1 of 1951)-hereinafter called the Abolition Act-the lands were not recorded as vested in the State Government but were treated as occupancy lands of Santosh Kumar. On 31-8-1951 there was a partition in the family and the disputed lands fell to the share of the Appellant. He continued in possession of those lands. He applied on 4-9-1951 for transfer of the lands in his name in occupancy rights, but the Deputy Commissioner rejected the application on 2-12-1952 and ordered that the lands be recorded as chhotu-ghas. Accordingly, the Plaintiff filed this suit for a declaration that the lands were held by him in occupancy rights. He also alleged that before the abolition of the proprietary rights, rent was paid by Santosh Kumar to his father Gulabchand and thereafter in the years 1950 and 1951 rent was paid by him to the Government, as the lands were recorded in occupancy rights in the name of Santosh Kumar.

The State Government denied that any gift or sale of the lands was made by Gulabchand in favour of Santosh Kumar and pleaded that Gulabchand in collusion with the Patwari got the lands recorded in occupancy rights in the name of his son in the year 1946-47 which record continued till the abolition of proprietary rights, although the lands were never culti- vated and were always under grass. It was admitted that the lands were not recorded as vested in the State Government but were recorded in occupancy rights in the name of Santosh Kumar; but this was because of the fraudulent record in the village papers. It was also admitted that the Patwari and Patel had realized rent for the lands in the year 1951-52; but it was explained that this was done under a mistake of fact which arose from the wrong records. Finally it was pleaded by the State Government that the lands were chhotaghas lands and not khudkasht of the Lambardar and were therefore liable to be vested in them and that the order of the Deputy Commissioner, Saugar, recording them as such was correct.

The trial Court held that Gulabchand had not leased out the lands to Santosh Kumar as alleged and that the lease deed, dated 5-6-1946, was not admissible in evidence being unstamped and unregistered. It was also found that the record in the village papers was made by the Patwari in collusion with Malguzar. Accordingly, it was held that the lands continued to be "chhotaghas" lands liable to be vested in the State. The suit was accordingly dismissed.

Ex. P-28 is the Patta, dated 4-6-1946, by which Gulabchand transferred the lands in suit in occupancy rights to his son Santosh Kumar. It is significant to observe that this Patta was not produced before the Deputy Commissioner and it was then stated that it had been lost. The transfer was made without any consideration. As the Patta created a perpetual lease in favour of Santosh Kumar, it was compulsorily registrable u/s 17 of the Indian Registration Act. It could not, therefore, be admitted in evidence as a conveyance. It is not stamped and for that reason also it is not admissible.

Gulabchand as P.W. 4 admits that these lands are under grass and were never cultivated. He also admits that both Santosh Kumar and the Appellant Komalchand were living jointly with him along with their mother, Mst. Chhabrani. In paragraph 10 of his statement he states that he is unable to say which of the Khasra numbers in the name of Santosh Kumar were cultivated and which were tying fallow. He further admits that all the lands which are recorded as chhotaghas were under grass. His statement that the cattle of Santosh Kumar used to graze on the lands has no meaning when we appreciate that the family was joint and there is nothing on record to indicate that Santosh Kumar separately owned any heads of cattle. Some receipts for payment of rent by Santosh Kumar to Gulabchand have been filed; but under the circumstances, the trial Court rightly observed that no such payments were made. The evidence establishes beyond doubt that the lands in suit were held jointly by the family and were never cultivated by anyone. They were in possession of the joint family which fact is farther borne out by the partition which took place, according to the Appellant, in 1951 between the father and the two brothers.

The finding of the trial Court that the record in the name of Santosh Kumar was made by the Patwari in collusion with the Lambardar Gulabchand is also reasonable. The acceptance of rent by the Patel and Patwari who realised rent on behalf of the Government on the basis of the village records does not therefore amount to a creation of tenancy by acceptance of rent. It was obviously accepted by the Patel and Patwari as agents of Government under a mistake of fact.

There is no specific provision either in the Transfer of Property Act or in the Evidence Act laying down that tenancy is created by mere acceptance of rent. Section 116 of the Transfer of Property Act deals with tenants holding over, i.e., remaining on the land with the implied consent of the landlord. It does not apply to initial creation of tenancy. Section 116 of the Evidence Act deals with estoppel against the tenant in certain cases and not against the landlord. The only section which can be relied upon for inferring the creation of tenancy in Section 115 of the Evidence Act which incorporates the general law of estoppel. However, that section has no application to a case where the acceptance of rent is under a mistake. In such a case, the act of the landlord in accepting rent does not lead to the inference that this was done in pursuance of a contract of tenancy. Nor is there any estoppel in the instant case, as the state Government in realising rent did not induce the Plaintiff to change his position to his prejudice.

A somewhat similar question arose in Mitra Sen v. Mst janki Kuar AIR 1924 PC 213. In that case, the widow of an under-proprietor of the Taluqdar held the villages under a compromise with the Taluqdar. After her death, the wife of another member of the family continued in possession under the terms of the same compromise. Thereafter, a third lady stepped into possession of the villages land got, them mutated in her name. She paid rent for the villages to the Taluqdar whose estate was under the Court of Wards. The contention was that the Court of Wards was estopped from challenging her status as an under-proprietor, as they had accepted rent. Their Lordship sob served that the mutation was made without enquiry as to the status of the lady and that rent was accepted under a mistake, and then said:

Their Lordships fail to understand how the doctrine of estoppel could ever be founded upon for the purposes of the recognition of any such claim or the hearing up of any such right. The whole of this doctrine appears to be founded, simply upon the transaction of taking rent each year, but the taking of a rent each may and as the Courts have properly held, did bar by estoppel the Court of Wards from any claim for mesne profits during the particular year or years for which such rent was received. It estopped the Court of Wards from maintaining that the lady possessed the property with a liability to account or possess on any other or further terms than on payment of the rent made and taken.

But there estoppel stops and it can never be reared up into the creation of a pukhta-dari right of a proprietary, heritable, and transferable character, nor can it ever create a right of possession of the property for life under the same terms as some other person had previously possessed it upon. Such foundations of title are unknown and they can never be created in such a manner.

Likewise, in the instant case, the acceptance of rent on the basis of an earlier record in the village papers creates no estoppel against the Government and does not create a title of occupancy tenant in the Plaintiff.

The last contention on behalf of the Appellant is that the record made at the time of abolition by the Compensation Officer is final and cannot be challenged as provided in Section 115(4) of the Abolition Act. u/s 13, the Compensation Officer is required to record "the details of the land which shall vest in the State Government after its acquisition in lieu of the payment of such compensation". The Form prescribed under that section for making such record is Form III, Part I-A. This form has eight columns with the following headings:

Area held by absolute occupancy tenants

Area held by occupancy tenants

Area held by proprietor not included in home-farm

Area of village service holdings

Area of land other than sir held by any person from the proprietor on favourable terms for service rendered by him

Area under grass, scrub jungle and forest

Area under village sites, hats, bazars, melas, wells, tanks, ponds, water channels, rivers, nalas, pathways and other communal land

Other unoccupied land

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

It is not disputed that the area of the suit lands is included in the area mentioned in column 2 and not in column 6. As Chhotaghas, it should have been entered in column 6. Sub-section (4) of Section 15 is as follows:

Except as provided in Sub-sections (1) to (3) the decision and the record made by the Compensation Officer shall be final and conclusive in respect of the quantum of the compensation payable, and other entries made in the statement of the Compensation Officer.

The question is whether this Sub-section creates a bar against the Government for asserting the real character of the land.

It has to be noted that the State Government is challenging in this case the right asserted by the Plaintiff as a tenant. No question of the rights of the exproprietor aries(sic) in this case, as the ex-proprietor is not claiming any right in the lands. Form III, which shows the details of lands vesting in the Government u/s 13(1), includes all, sorts of lands in the village including occupancy tenancy land. The rights of the proprietor in these lands also vest in the Government. The record does not go any further. Section 13 does not require the Compensation Officer to record the rights of the tenant or other persons and he cannot, therefore, make any enquiry in this matter. This is naturally so because under the Abolition Act it is only the rights of the proprietor which vest in the State and it is only these which have to be recorded in the prescribed Form. The bar u/s 15(4) arises only when the challenge is made by the proprietor on the ground that certain lands have wrongly been treated as vested and operates only between him and the Government. That section does not prevent a person who claims to be a tenant from challenging any entry made by the Compensation Officer wrongly recording his land as vested. Had that been the intention, Section 13 would have provided an opportunity to him for being heard. As it is, a tenant has no locus standi at that stage to press his claim. It follows that he is not bound by the entry and as a necessary corollary the converge also follows that the Government is free to challenge his claim irrespective of the record made u/s 13. Accordingly, we hold that the Government is not debarred from setting up that defence in answer to the assertion by Plaintiff that he is an occupancy tenant.

In the result, we find that there is no substance in this appeal. Accordingly, it is dismissed with costs.