Mahabir Das vs Udit Narain Verma and Others

Manohar Lall, J.—This is an appeal by the plaintiff against the judgment and decree of the learned Subordinate Judge of Monghyr dated 31st May 1935 by which he dismissed the suit of the appellant which was instituted on 17th March 1934 to eject the defendants first party.

The defendants second party were impleaded in the action as bataidars under the defendants first party. Defendant 3, Balesar Prasad, has admittedly been impleaded uselessly as a defendant. It is convenient to set out here the circumstances which led up to the institution of this suit and which though apparently of a complicated nature are extremely simple. The lands in dispute, with an area of 50 bighas 15 kathas and 10 dhurs is situated in village Lakho within the proprietary right of mahant Jagannath Das of Bishanpur Asthal in Begusarai thana. This mahant in the year 1925 executed a registered document, which has been spoken of in these proceedings as a mahantnama, by which he appointed the appellant, his trustworthy chela, as a mahant from that date and authorized him to get his name registered in the Collectorate department which was immediately done. The old mahant owing to ill health then proceeded to Calcutta; on his return he found the attitude of the new mahant entirely changed towards him. For this reason as well as for other reasons which need not be stated here the old mahant cancelled the mahantnama and this led to the institution of a number of criminal proceedings between the old and the new mahant beginning from July 1927.

Ultimately the matter was taken to the Civil Courts and a regular title suit No. 99 of 1928 was instituted by the old mahant on 24th November 1928 for a declaration that the old mahant was still the mahant of the Bishanpur Asthal, that the new mahant had no right whatsoever to the mahantship of the said Asthal and its properties, that the new mahant by the deed dated 12th July 1925 was constituted as a future mahant after the death of the old mahant, that the said deed did not confer any present right or title to the properties attached to the schedule of the plaint or to the asthal, that by the deed dated 23rd July 1927 the nomination of the defendant as a future mahant has been cancelled and the defendant has no right to the mahantship of the asthal in future, that the defendant has fraudulently and wrongly got himself recorded as proprietor and that the plaintiff is entitled to have the name of the defendant removed from the Collectorate register wherein he has been recorded as proprietor. The plaint also asked for confirmation of possession over the properties of the asthal and for other incidental reliefs.

During the pendency of this suit a receiver who was appointed by the order of the learned Judge dated 25th February 1929, took charge of the asthal properties and realized rents from the tenants for the period of his receivership which appears to have ended in September or October 1930 as the contending parties were able to compose their differences by that time by a petition which is to be found at p. 65 of the record bearing date 26th August 1930. The old mahanth died on 9th May 1931 and the present plaintiff became the rightful mahant.

On 19th September 1931 the Sub-Inspector of Begusarai reported to the Sub-divisional Officer that a breach of peace was imminent owing to a dispute arising between the plaintiff and the defendants first party as to the possession of the lands in dispute in the present case.

The learned Magistrate made an emergency order u/s 144, Criminal P.C., on 21st September 1931 and subsequently on 2nd October 1931 proceedings u/s 145, Criminal P.C., were drawn up. In these proceedings the claim of the first party was that he was entitled to khas possession of the lands in dispute which were khudkasht lands of the asthal and that the second party was illegally trying to interfere with; this possession.

The claim of the second party, that is to say the defendants first party in the present action, was, as is now, that the lands in dispute were settled with one Chaturbhuj Sahay, Mukhtar, by the old mahant by means of a hukumnama dated 18th September 1921 on receiving a salami of Rs. 4860 and agreeing to receive the rent at the rate of Rs. 4 a bigha and that Chaturbhuj continued to be in possession on paying rents for the years 1329, 1330, 1331 to 1334 Fasli (in which year he died in the month of Baisakh) as evidenced by receipts Exs. A (2), A (3), A (4) and A (6), that thereafter the defendants first party, who succeeded to the rights of Chaturbhuj in these lands by virtue of a certain will or a gift, continued in possession and paid rent for these lands for the year 1335 Fasli as evidenced by receipt Ex. A (7) to the old mahant and that when the receiver came into possession the defendants first party paid rent to him for the year 1336 on 7th May 1929 and obtained a receipt (Ex. A) and also paid a portion of the rent for the Judge has relied upon these receipts. I do not see any reason whatsoever why this Court should not rely upon the receipts Exs. A and A (1). Basdeo Narain, witness 6 for the defendants, gives his evidence in very clear terms that he was a Tahsildar of village Lakho under the receiver and that he granted receipts to Udit under the orders of the receiver, that Ex. A is written by the witness and Ex. A (l) is written by Sital Prasad Patwari and that the first receipt was granted by him after seeing the hukumnama for which it appears the receiver gave a receipt,(Ex. B) on 22nd May 1929.

There is some discrepancy in this evidence: the evidence suggests that the receipt Ex. A which bears date 7th May 1929 was given after Ex. B which was written on 22nd May 1929, but it may be that the receipt (Ex. A) was granted on 7th May 1929 and on that date the hukumnama was shown to and kept with the receiver and thereafter the receipt (Ex. B) was obtained to show that the hukumnama was left with the receiver.

The learned advocate for the plaintiff however argues relying upon Ex. 3 which is to be found at page 67 that the receipt Ex. A must be forged, because on 18th September 1929 the receiver had submitted a report to the learned Subordinate Judge drawing his attention to the fact that a large number of hukumnamas bearing one anna stamps and bearing dates long before the appointment of the plaintiff as a mahant were being put forward as having been granted by the old mahant and that if these settlements, whether genuine or not, were to be upheld, this would mean a tremendous loss to the estate; he also pointed out that the new mahant was not recognizing these hukumnamas or settlement and was insisting on treating the lands covered by them as kamat in the jamabandi filed by him; he also drew attention to the fact that if this attitude of the new mahant is to be adopted, there would be every likelihood of a breach of peace because the settlement holders were laying serious claims to the lands on the strength of the hukumnamas and receipts granted by the old mahant.

The learned Subordinate Judge dealt with this report in his order which is printed in the margin and ordered that if the new mahant was not recognizing the so called settlement holders and described the lands as kamat these were good reasons to believe that these were bogus persons. He suggested that an enquiry should be made by the receiver to ascertain this and if the version of the new mahant was true, then these hukumnamas should not be acted upon and the settlements should not be recognized.

The argument of the learned advocate is that in the face of this order of the learned Subordinate Judge and in the absence of any report submitted by the receiver giving the results of his enquiry and without the sanction of the Subordinate Judge, it was not open to the receiver to have accepted Udit and Sheonandan as tenants of these lands by granting a receipt on 7th May 1929, that is Ex. A. But the order of the Subordinate Judge is in September 1929 and apparently relates to lands which are not the subject-matter of this appeal.

The inference I draw from, this is that nobody objected to the receipt op rent from Udit. I am satisfied that the receiver accepted the defendant first party as a tenant bona fide and received rents from him in 1336 and 1337 Fasli.

But the learned advocate for the appellant, relying upon the case in Jurawan Singh and Others Vs. Ramsarekh Singh and Others, contends that the settlement made by the receiver can enure only during the period of his receivership and confers no right which might prejudicially affect the rightful owner of the land. Kulwant Sahay, J. who delivered the judgment in this case refused to follow the Division Bench ruling, of this Court in Second Appeal No. 1044 of 1915, decided on 24th July 1916, which is unreported.

In that case the learned Judges had held that a receiver during the time of his management of the property u/s 146, Criminal P.C., was in the position of the party to whom the land was afterwards made over and everything, done by him would bind that party as an act done by the landlord for the time being, and also that the status of the person taking a settlement of the land for agricultural purposes from the receiver was at the very least that of a non occupancy raiyat. If the learned Judge did not agree with this decision of the Division Bench it was his duty as a matter of constitution to have referred the matter to a larger Bench, but instead of doing so he disagreed with that view in these words:

With very great respect to the learned Judges I am unable to agree with this view. The status of such a settlement holder as a non-occupancy raiyat can be maintained only as against the next year in 1337 and obtained a receipt Ex. A (1).

The defendants also produced a receipt Ex. A (5) for the year 1338 Fasli by which it is stated they paid the amount in arrears to the old mahant amounting to about Rs. 398 on 27th April 1931. In this state of affairs it was alleged the old mahant died but the present mahant refused to acknowledge the title and possession of the defendants first party with the result that the matter was taken in Criminal Courts. The learned Sub-Divisional Officer in an elaborate judgment dated 14th July 1932 held that the hukumnama was a most suspicious and untrustworthy document, that although it bore the signature of the old mahant it appeared to be anti-dated and in any case the document being (unregistered was inadmissible in evidence; but he found that the old mahant had actually settled the lands with the defendants "first party who were let into possession in 1927 or 1334 Fasli; he also believed the rent receipts granted by the receiver. He accordingly held that the defendants first (party came into possession of the disputed 4 ands in 1927 and have remained in possession ever since. Being aggrieved by this order the present suit has been lodged.

The only points that are seriously in controversy in the present litigation are whether Chaturbhuj and after him the defendants first party obtained any rights whatsoever to remain in possession of the (lands in dispute as tenants on the stipulated jama calculated at the rate of Rs. 4 a bigha. The learned Subordinate Judge in a careful judgment has come to the conclusion that the story that Chaturbhuj paid a salami of Rs. 4860 in return for a mere unregistered document (the hukumnama) ''by which he obtained perpetual lease of a large area of land is absolutely unbelievable. He has given cogent reasons for, soming to this conclusion and although we were invited in an elaborate argument on ''behalf of the respondents to hold otherwise, we have no hesitation whatsoever in agreeing with the learned Subordinate Judge in this conclusion. A mere look at the hukumnama shows that it is a got up document. There is no witness who comes to prove the passing of this large salami nor is it evidenced by any receipt granted by or on behalf of the old mahant. The document is unreaistered and bearing in mind that Chaturbhuj was a mukhtar it is unbelievable that he will part with such a large .sum and be content with receiving a mere unregistered hukumnama. The question then arises whether there is any other evidence of a reliable character to prove that Chaturbhuj had entered into possession of the disputed lands as a tenant from some time before his death and if he continued in possession as a tenant till Baisakh 1334, when he died. It is unnecessary to decide this question because whatever rights, if any, Chaturbhuj had acquired by the so-called hukumnama of 18th September 1921 disappeared with his death. The defendants first party do not claim as heirs of Chaturbhuj Sheonandan Prasad, who is defendant 2 in the action, says in his evidence at page 43 as follows:

Chaturbhuj Sahai brought up my mother from her childhood and performed her marriage. Siuoe my hosh I lived with Chaturbhuj--I do not know if Chaturbhuj requested my father to give me in adoption. There is no paper to show that he brought me up.

A few lines later he says: "Chaturbhuj and his wife executed a registered will about 15 years ago." But it may be noticed here that the will is not probated and therefore no rights whatsoever can be founded upon this will. So far as the lands in dispute are concerned it was sought to be made out by this witness that Chaturbhuj told him that he had taken a settlement in the name of Udit, defendant 1, as he had already executed a will in his favour and added: "I did not conclude from this that he intended Udit to be owner of the suit land." The evidence of Palakdhari Jha (D. W. 9) is to the same effect. He says at page 38:

Chaturbhuj gifted all his properties excepting the suit land to Sheonandan. He made an oral gift of the suit land to Udit. I do not know when this oral gift was made.

It is clear from a mere perusal of the oral evidence of this defendant--and this is all the evidence in the case on this topic--that the defendants have no right whatsoever to the inheritance of Chaturbhuj and therefore can have no right whatsoever to the lands in suit as heirs or as transferees from Chaturbhuj--the result is as

I have stated already that the rights of Chaturbhuj disappeared with his death. It was however argued on behalf of the respondents that the receipts Exs. A and A (1) granted by the receiver for 1336 and 1337 Fasli and the receipt, Ex. A (5), granted by the old mahant for 1338 Fasli are them selves sufficient to show that these defend dants were recognised as tenants of the disputed lands. The learned Subordinate receiver, if at all, and not against the rightful owner.

The remarks of the learned Judge assume that the person with whom settlement is made by the receiver is claiming right by virtue of such a settlement but that is not so. It is the law which confers a right upon the tenant after he has been let into possession and the only thing which the Court should carefully consider is that the so called settlement by a receiver who admittedly is the landlord for the time being within the meaning of the Bihar Tenaney Act is made bona fide in the interest of the estate in the ordinary course of his management and not so as to prejudice the rights of the landlord.

The reason which I have just indicated is the foundation of the reason upon which the Full Bench case in Bindal Lal Pakrashi v. Kalu Pramanik (1893) 20 Cal. 708 is based which has been constantly followed in this Court with certain exceptions that do not apply to this case. If the view laid down by Kulwant Sahay, J. is to be adopted as correct receivers of an estate would find it impossible to make any profitable settlement with tenants who feeling their position insecure would not willingly come forward to take settlements at proper rates if at all. With great respect I accept the decision in Second Appeal No. 1044 of 1915 as correct law as we are constitutionally bound to do. The decision in the later case in Jurawan Singh and Others Vs. Ramsarekh Singh and Others, dealt with the situation where the receiver was in possession on behalf of the contending parties who were asserting their rights as raiyats but not as landlords. In such cases it is obvious that different considerations would apply, namely that the settlement by the receiver would be ineffective so far as he was settling the raiyati lands with the raiyats beyond the period of his possession.

It has been clearly established then that the possession of the defendants must be accepted to have commenced as raiyats from 1929, that is when they obtained the receipt (Ex. A) from the receiver. This possession as a raiyat was again recognized when they obtained another receipt Exhibit A (1) from the receiver for 1337 Fasli. The receiver was in juridical possession of the estate by the implicit consent of the parties under the orders of the Court and he must be treated as a landlord for the time being. His accounts were open to inspection and if he was doing anything which was detrimental to the interest of the estate it would be the duty of the party aggrieved to bring that matter to the notice of that Court. What has the plaintiff proved in the present case? There is no evidence of a reliable character given in the present case from which I can conclude that the receiver was not acting bona fide when he recognized the possession of the defendants as tenants. It may be he was misled by the hukumnama which appears to contain a genuine signature of Mahant Jagannath Das, or it may be that he was induced to do so by the view he took of the receipts Exs. A (6) and A (7) of the year 1334 and 1335 Fasli or it may be that he was satisfied upon an enquiry at the spot or in his office that the present defendants have a bona fide right to be in possession of these lands; but be that what it may, the action of the receiver was bona fide in the ordinary course of management.

It will be noticed that I have so far omitted from consideration the receipt Ex. A (5) which has been proved to have been granted by the old mahant for 1338 Fasli. This has been proved by D. W. 7 and the defendant himself. The patwari Eajeswar Lall was not called to deny this and he was stated to be in the service of the plaintiff at the time of the trial. It is noteworthy that the plaintiff did not produce his collection papers for the years 1334 to 1339 Fasli and the learned Subordinate Judge is correct in drawing an inference against the plaintiff that the absence of such papers leads to the conclusion that the land was in possession of the defendants as tenants during the critical period.

This further strengthens the conclusion to which I have arrived that these defendants were accepted bona fide as raiyats by the receiver.

It was then argued, that where the lands in suit are admitted to be in village Lakho within the ambit of the zamindary of the plaintiff, the onus is on the defendants to prove their tenancy. This is no doubt a correct statement of the law. The defendants have not been able to prove an actual settlement with them or with Chaturbhuj, but if the receipts Exs. A and A (1) are genuine it must follow that they have proved their right to remain upon the lands. It would be useful to read here the decision of their Lordships of the Privy Council in AIR 1932 264 (Privy Council) where their Lordships pointed out that

if the receipt was genuine, it must, in the opinion of this Board, be not merely a recognition of some tenancy but of a raiyati tenancy,

and the question whether occupancy right has been acquired would then depend upon the surrounding circumstances in the case and if the person to whom receipts have been granted is able to show that he has been in continuous and unbroken possession [for the statutory period he would acquire ''rights as an occupancy raiyat. The nature of the tenancy right cannot be determined (sic) in the present action, but I do not agree with the view of the learned Subordinate Judge that

the defendants by their continuous possession for 12 years have acquired right of occupancy in the suit land.

For the reasons already indicated it is clear that the defendants were in possession from 1335, that is 1927 onwards, and when this suit was instituted only seven years have expired. It was strongly contended for the appellant that it was not within the power of the old mahant to have made a permanent settlement of the lands even on receiving a proper salami unless such a transfer was imperative, due to pressing necessity or "for the benefit of the asthal" within its technical meaning; but this argument has no force.

In Jai Krishna Puri v. Bhukhal Gope A.I.R.1922. Pat. 165 it was decided by this Court that a mahant jean grant a lease of math lands provided such a settlement is made in the ordinary course of management.

In Maharanee Shibessouree Debia v. Mothooranath Acharjo (1869) 13 M.I.A. 270 it was pointed out by their Lordships of the Privy Council that a limited owner like the mahant can create derivative tenures and estates conformable to usage. Were it otherwise it will be impossible for limited owners to manage their estates in the ordinary course.

In Bhabani Charan Banikya Vs. Suchitra Baisnabi, a shebait of debutter property granted a lease of a tank which was held not to be for fixed rent but which provided that the tenancy was permanent so long as rent was regularly paid, the rent being liable to enhancement according to law. It was held that such a lease was within the competence of the shebait to make and the case relied upon by the appellant, namely the case in Palaniappa Chetty v. Devasikamony Pandara Sannadhi A.I.R.1917. P.C. 33, was distinguished on the ground that in the Madras case the lease was at a fixed rent. It was also pointed out that an idol''s estate is left with the benefit of an augmentation of rent from time to time and this is within the competence of the shebait. Similar is the position in the present case.

For these reasons the appeal is dismissed, but under the circumstances, as the defendants have not succeeded in establishing their case that they had obtained a settlement of these lands by paying a large salami of Rs. 4860, each party will bear their own costs of this litigation throughout.

Fazl Ali, J.

I agree.