Lal Sahi Palian and Others vs Deba Munda and Another

Allanson, J.—The plaintiffs brought the suit out of which this appeal arises as maliks and mundari khuntkattidars of Mauza Putidag against the defendants, who are mundari khuntkattidars of the adjacent village Sulha, on the allegation that the defendants had dispossessed them of land which they had reclaimed in plot 43, part of a nala which forms the boundary between the two villages. The defendants alleged that they had reclaimed the nala which formed plot 376 of their village, and being mundari khuntkattidars they had acquired occupancy rights therein.

According to the settlement map, the boundary between the two villages lies in the middle of the nala, which is numbered as plot 43, for the portion lying in Putidag, and as plot 376, for the portion lying in Sulha. The lower appellate Court has found that the lands in suit appertain to Putidag, but were reclaimed by the defendants from seven to nine years ago; that the defendants had not acquired title by adverse possession, and that the suit was not barred by Section 64(3) or Section 139, Chota Nagpur Tenancy Act.

In second appeal by the defendants it is contended that in view of the provisions of Section 64 the defendants cannot now be ejected. Korkar is defined in Section 3 (xiii), and may be briefly described as land reclaimed from waste for the purposes of rice cultivation. u/s 4 a mundari khuntkattidar is a tenant, and the status is defined in Section 8. Mauza Putidag is a mundari khuntkatti village, of which the plaintiffs and others are the mundari khuntkattidars. Section 64 provides, with certain exceptions with which we are not concerned, that the oral or written consent of the landlord is required for the conversion of land into korkar. Sub-section 3 provides that, where the consent is required by this section, such consent shall be deemed to have been given if, within two years from the date on which the cultivator commenced such conversion, the landlord has not made ah application to the Deputy Commissioner for his ejectment. By Act 6 of 1920, the following addition was made to this subsection:

And no cultivator who is a tenant or resident of a village, shall be ejected from land of that village, which he had commenced to convert into korkar, otherwise than upon such an application.

It was pointed out in Pareshram Deogharia and Others Vs. Maharaja Pratap Udai Nath Sahi Deo, that the indications in the Act and in particular this addition to Section 64(3) clearly imply that it is not merely a tenant or resident of a village who can make korkar in that village. The lower appellate Court is of opinion that the plaintiffs are not landlords in view of the fact that mundari khuntkattidars are classified as tenants in Section 4. But a landlord is not the same as a proprietor, and a tenant may also be a landlord as defined in Section 3 (xiv). In the record of rights the names of the landlords are given as Deba Munda and others; Deba Munda is plaintiff 1. Then follows the list of the holdings belonging to the different Mundas in the village. The plots in suit was recorded in the waste land khatian as a nala. The plaintiffs'' case is that they reclaimed the land; but it has been found by the Courts below that the reclamation was done by the defendants. If the plaintiffs are suing as landlords as would appear from the words "maliks and mundari khuntkattidars" in the plaint, they must be deemed u/s 64(3) to have given their consent, in view of the finding that the reclamation was done by the defendants within seven to nine years before the suit was brought. The word used in Section 64 for the person who converts land into korkar is "cultivator," not "raiyat"; and there can be no question that the defendants are cultivators. It is clear that for years the plaintiffs sat quiet and allowed the reclamation to go on, a work that involves much labour on the part of the reclaimers.

They came up with a false case that they themselves had done the reclamation. It is not their case that the defendants encroached on their tenancy. The plaintiffs cannot be held to be suing as mundari khuntkattidars for the ejectment of persons who had encroached on their village, for there is nothing in the plaint to shew how they represent the whole body of mundari khuntkattidars in Mauza Putidag. They are not suing as tenants on whose holding another person has trespassed, because this land was admittedly a nala, and as the plaintiffs'' case that they reclaimed it has not been believed, the nala did not form part of their tenancy. In my opinion, the defendants cannot be ejected in this suit.

This appeal must be allowed, the decree of the lower Court set aside and the plaintiffs'' suit must be dismissed with costs in all Courts.