Lal Singh Bhumij vs Krishto Khutya

Sen, J.—This appeal arises out of a suit for recovery of khas possession of certain lands after ejecting the defendant therefrom and for declaration of plaintiff''s raiyati right thereto. The plaintiff-respondent''s case was that he had possession of the land all along by payment of rent to the superior landlord, that the lands had been recorded in the last District Settlement as plaintiff''s raiyati lands but that the defendant-appellant had forcibly dispossessed the plaintiff from the lands on the 30th October, 1919.

The defence was that the lands in dispute form part of a ghatwali service tenure, that the defendant being a Paik ghatwal under Government was entitled to those lands in lieu of services rendered by him as such ghatwal and that no right of occupancy could accrue in respect of such lands. The Court of first instance mainly relied upon the Record-of-Rights in which the plaintiff-respondent had been recorded in the settlement khatian (Ex. 1) as the "dakhalkar." The Court on this basis declared the raiyati right of the plaintiff to the land and passed a decree for khas possession. On appeal before the learned Subordinate Judge, the judgment and the decree of the first Court was upheld.

Four points fall to be considered, first whether occupancy rights are consistent with the incidents of ghatwali tenures in general; secondly, whether, even if inconsistent with ghatwali tenure in general, in this particular case occupancy right might be said to have accrued by virtue of custom or usage; thirdly if, as has been contended before us, by virtue of Section 6 of Chota Nagpur Landlord and Tenant Procedure Act (I of 1879) occupancy rights could be acquired under the law in force prior to the introduction of the Chota Nagpur Tenancy Act (Act VI of 1908) and could such rights created be affected by Section 77 of the latter Act; fourthly, whether in the case before us occupancy right did come into existence prior to the passing of the Chota Nagpur Tenancy Act (Act VI of 1908); if not what was the legal position of the tenant who had not completed his tenancy before the introduction of the Act.

On principle it appears that the incidents of ghatwali tenures are inconsistent with the acquisition of a right of occupancy in land subject to such tenure. As has been observed by Mitter, J., in the case of Mohesh Majhi v. Pran Krishna Mondal (1904) 1 C.L.J. 138: "If it be once conceded that a successor of a ghatwal takes possession of ghatwali lands free from all encumbrances created by his predecessor, that is, he is entitled to the possession of the land in the same condition as it was at the time of the first creation of the tenure, subject to any rights imposed upon it by the Government, it is difficult to say that the land may be encumbered by statutory rights such as rights of occupancy or non-occupancy. The growth of such rights would seem to be inconsistent with the nature of service tenure." This was also the opinion expressed by Fletcher, J., in the case of Jafaruddin v. Jamani Ballav 23 C.W.N. 136. There appears to have been a different view expressed in the case of Sitikanta Ray v. Bipra Das Charan 22 C.W.N. 763 which is relied upon in this case by the Court below. That case was in respect of ghatwali land in the District of Bankura. But it appears that in that case there was a finding of fact to the effect that the tenant was in possession as cultivating raiyat under the ghatwal for more than 12 years before the Bengal Tenancy Act came into operation and it was held that Section 181 of the Bengal Tenancy Act could not have the effect of depriving the raiyat of a right which had already accrued to him before the passing of the Act. The next case cited is the case of Ram Kumar Bhattacharji v. Ram Newaj Rajguru [1904] 31 Cal. 1021. In that case it was held that right of occupancy could be acquired by a tenant in Chowkidari Chakran lands u/s 6 of Act X of 1859. On the other hand, in the case of Upendra Nath Hazra v. Ram Nath Chowdhuri [1906] 33 Cal. 630 Maclean, C.J., held that occupancy rights could not be acquired in ghatwali lands following the decision of Mitter, J., in Mahesh Majhi v. Pran Krishna Mondal (1904) 1 C.L.J. 138. In view of the rulings on the subject of ghatwali tenure it seems clear that the better opinion is that occupancy rights are inconsistent with such tenures inasmuch as on principle the landlord is entitled to have the land that was given to the ghatwal in lieu of performance of his duty returned to him in the same condition free from any encumbrance or rights of any other person imposed upon it.

In the present case, however, the learned Subordinate Judge seems to have proceeded upon the observation of Mr. Reid appearing at p. 15 of his work on the Chota Nagpur Tenancy Act. He observes: "In the District of Singhbhum such a raiyat with whom land was settled on cash rent acquired by custom right of occupancy since it was settled. It follows from the above that if the land was settled on cash rent with the plaintiff by the previous ghatwal before the passing of the Chota Nagpur Tenancy Act, he acquired right of occupancy in it and Section 77 (which corresponds to Section 181 of the Bengal Tenancy Act) cannot affect the right of the plaintiff." This brings us to the second point; if the case has to rest upon usage or custom it must necessarily depend upon evidence of such custom and usage. The incidents of ghatwali tenures, in fact of service tenures in general, differ widely in different parts of the country and the question of custom or usage in relation to ghatwali lands must be pleaded, and evidence must be gone into in order to come to a conclusion as to whether by virtue of such custom or usage occupancy rights might be regarded as having accrued in respect of such lands. No such thing was done in the present case; it seems to us that the whole case has been made to rest upon the observation of Mr. Reid, in his commentary to the Chota Nagpur Tenancy Act. This position is utterly untenable. Thirdly, it has been contended that by virtue of Section 6 of the Chota Nagpur Landlord and Tenant Procedure Act (Act I of 1879) it must be held that occupancy rights could accrue in respect of all lands without any distinction. If this was the effect of statutory provisions prior to the introduction of Act VI of 1908, then Section 77 of the Chota Nagpur Tenancy Act could not be deemed to affect such rights already accrued. This argument is advanced on the analogy of arguments put forward in some of the cases cited above in which reliance was placed upon Section 6 of Act X of 1859 and it was urged that by virtue of the provisions of that section, Section 181 of the Bengal Tenancy Act could not be deemed to preclude the accrual of occupancy rights in land subject to service tenures. It is true that the terms of Section 6 of Act I of 1879 are similar to those of Section 6 of Act X of 1859 but judging from the preamble of Act I of 1879 which purports to amend the procedure in suits between landlord and tenant in Chota Nagpur I have some doubts in my mind whether a statute relating to procedure could purport to create substantive rights of occupancy. I do not think however, that it is necessary to express an opinion on the point in the present case; for in the present case admittedly the plaintiff was in possession of the land for only 10 years prior to the passing of the Chota Nagpur Tenancy Act. The occupancy right, therefore, had not accrued to him at the time when Act VI of 1908 came into force and it must be held that directly the Act came into operation. Section 77 of that Act would effectively prevent the occupancy right from accruing in respect of ghatwali land. In view of this consideration we think that it cannot be declared that the plaintiff respondent has raiyati right to the land in question.

The result is that the appeal is allowed, the Judgment and decrees of the Courts below are reversed and the suit of the plaintiff-respondent is dismissed. The appellant is awarded his costs in all the Courts.

Ross, J.

I agree.