Lala Rajbali Lal and Others vs Partappur Co. Ltd.

Rowland, J.—This is an appeal by the plaintiffs who claim to have acquired raiyati right in 13 bighas 2 kathas 9 dhurs of land in village Damakia under the defendant company which holds the village on lease from the Hathwa Raj as proprietor. The land claimed in the suit appears to have been entered in the Record of Rights as being in part zirat, in part bakasht thikadar and in part gairmazrua, the last named class being only a small area of 3 kathas 5 dhurs. The substantial contest is with regard to the other two items. It has been held by the Courts below that the lands recorded zirat and the lands recorded bakasht are both zirat or private lands of the proprietor, the finding being that the Record of Rights entries, so far as they are to the contrary, are rebutted by the evidence adduced.

The suit has been dismissed on the ground that occupancy rights cannot accrue in land leased out in the manner and in the circumstances found in the present instance.

Two points are taken in appeal. One contention is that on the finding of the lower Courts that the land is zirat there is an error in law in holding that occupancy right cannot accrue. The second point taken is that the finding that the land is zirat ought not to stand because the lower Appellate Court in arriving at it has relied on evidence which was not admissible for the defendant and against the plaintiffs. I may take the latter point first.

The Courts below have taken into consideration zamindari papers of the proprietor and of the defendant which are said to have indicated that the land was treated as zirat since at least 12 years before the commencement of the Bengal Tenancy Act. There was other evidence before the Courts but the point taken is that these statements in the zamindari papers are admissions within the meaning of Section 17, Evidence Act, and that u/s 21 of the same they could be proved against the person making them but not by or on behalf of the person making them or his representative in interest.

In the argument it is rightly pointed out that Sections 17 and 21, evidence Act, are applicable and that the admissibility of these papers is to be considered in the light of those Sections. But the stipulation in Section 21 which was relied on for the appellants is subject to three exceptions embodied in the Section itself, the third of which is that an admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission; and the papers of which the admissibility has been called in question appear to be entries in books of account regularly kept in the course of business and as such relevant u/s 34, Evidence Act, in the present instance.

I am not prepared therefore to say that any error of law was committed in taking these papers into consideration and, in any case, they are not the only evidence on which the lower Appellate Court has proceeded. The findings of fact therefore cannot successfully be challenged in second appeal. Now I return to the first point promulgated. It has been argued that settlement by verbal leases, each for a period of one year or less such as were made by the defendant in favour of the plaintiffs will not operate to bring the provisions of Section 116 into force so as to prevent the accrual of occupancy rights. The Section applies to proprietor''s private lands "where any such land is held under a lease for a term of years or under a lease from year to year;" and it has been held in this Court in Shiva Shankar v. Kali Ojha AIR (1929) Pat 392 that in order to bar the acquisition of right of occupancy or of the right of a non-occupancy raiyat in respect of proprietor''s private or zirat lands it is necessary that such lands should be held under a lease for a term of years or under a lease from year to year.

Where such lands are not so held there is nothing to prevent the accrual of the rights of a non-occupancy or an occupancy raiyat. The correctness of this decision was affirmed in face of a contrary opinion which had been expressed obiter in certain cases by the decision of a Pull Bench in Tengaroo Bukul v. Chatthu Bhar AIR (1929) Pat 460 in which a passage is cited with approval from Bheonandan Roy v. Ajodh Roy (1899) 26 Cal 546. The passage runs:

As we understand the Section its object is evidently to exclude the proprietor''s private lands from the operation of Chaps. 5 and 6, Ben. Ten. Act, provided that the proprietor has taken a certain precaution which is indicated by the concluding words of the Section ''where any such land is held under a lease for a term of years or a lease from year to year.

Macpherson J. appears to have read the words quoted from the Section as meaning "a lease for more than one year or a lease from year to year" for he goes on to say:

The precaution is a lease of one of those two kinds which under the operation of Section 17(d), Registration Act, must be registered.

It is argued that such leases as were granted in the present case, orally and for a period of one year or less, do not come within the terms of the Section as "a lease for a term of years or a lease from year to year," the expression "term of years" being taken to imply more than one year. It has however been held in Umashankar Prasad v. Kunj Bihari Thakur AIR (1938) Pat 299 that "term of years" includes a lease for one year or for a fraction of a year. There seems to be a difference between this decision and that, of the Full Bench as to the meaning to be attached to the expression "lease for a term of years"; but it is not necessary to decide here which meaning of the words is correct because the appeal must fail on another ground.

The case before us does not depend on the construction and effect of the letting by the defendant to the plaintiffs but on the effect of the letting of the land by the proprietor. A similar position came before the Calcutta High Court in Bheonandan Roy v. Ajodh Roy (1899) 26 Cal 546 The suit was by the landlord to eject as trespassers two-defendants Deva Roy and Ajodh Roy of whom it was found that the defendant Deva Roy came upon the land while it was held by the other defendant Ajodh Roy as a thikadar under the proprietor under a lease for a term of years; and the substance of the decision was that those two circumstances were sufficient to bring the case within Section 116, Ben. Ten. Act.

The proprietor is entitled to the benefit of this Section if he has taken the precaution of letting out his zirat lands under a lease for a term of years or under a lease from year to year. If he has done this, Section 116 will apply to the land with the result that his lessee can neither acquire nor confer on any sub-lessee a tenancy carrying the benefits of Chaps. 5 and 6, Ben. Ten. Act, which deal with the rights of occupancy raiyats and non-occupancy raiyats. Mr. De argued that the authority of this decision should not be accepted.

We have not been shewn any case in which it has been questioned and we see no reason ourselves to doubt its correctness. On the law as there laid down it is dear that the plaintiffs have not acquired the right which they claim in the lands in suit and the decision of the Courts below dismissing the suit must be affirmed. I would dismiss the appeal with costs.

Agarwala, J.

I agree.