Mahadeo Lal and Others vs Sri Gobind Lal Sahu and Others and Sanker Pande and Others

Kulwant Sahay, J.—These three appeals have been preferred by the principal defendants against the decision of the District Judge of Shahabad, dated the 5th September, 1921, whereby he reversed the decrees of the Munsif of Sasaram, and decreed the plaintiffs'' suit for possession of certain lands. The facts are shortly these: The plaintiff is admittedly the zemindar of the village. He holds 3 annas share pucca which is equivalent to 9 annas, 7 pies, 4 krants under a Collectorate partition in Mauza Neoras. On the 5th April, 1904, the plaintiff executed a bharna-deed in respect of his interest in the village in favour of the predecessor-in-interest of pro forma defendants. The deed was executed to secure repayment of an advance of Rs. 2,641 made by the ancestor of the pro forma defendants to the plaintiff and the stipulation in the deed was that the mortgagee would remain in possession of the plaintiff''s share in the village for the period from 1312 to 1319. A sum of Rs. 750 was fixed as the annual jama or rental payable by the mortgagee to the mortgagor out of which the mortgagee was to deduct a sum of Rs. 450 annually and to appropriate the same towards repayment of the sum advanced by him and the balance of Rs. 300 was to be paid yearly to the mortgagor. The plaintiff''s case is that the lands in dispute in those three suits were the zirait lands of the proprietor; that at the time of the execution of the bharna-deed the plaintiffs were in possession of these lands and when the pro forma defendants came into possession of the village, they took possession of these lands as zirait lands; that during the Survey and Settlement proceedings, which came to an end some time in November, 1912, the pro forma defendants got the names of the principal defendants in each of these suits recorded as tenants of the lands in dispute. Tanaza was filed before the Survey authorities but the objection was disallowed and the principal defendants were recorded as occupancy tenants of the lands in dispute. The plaintiff''s case was that there was no bona fide settlement in favour of the principal defendants and, as a matter of fact, the pro forma defendants themselves continued in possession of these lands and the names of the principal defendants were caused to be recorded with the object of retaining possession of these lands even after the expiry of the term of the bharna. They, therefore, prayed for a declaration that the lands were zirait lands of the plaintiff; that the pro forma defendants had no right to settle the lands with the principal defendants; that, as a matter of fact; no such settlement had been made and that the principal defendants were trespassers and they prayed for recovery of possession of these lands. The pro forma defendants did not enter appearance and the suit was contested by the tenant-defendants and their allegation was that the lands in dispute were their ancestral occupancy holdings. In paragraph 11 of the written statement these defendants alleged that the plaintiffs'' allegations that the bharnadars had no right to settle the lands and that the defendants are not kashtkars of the disputed lands, were altogether wrong and false, that the disputed lands constituted the kasht of the defendants, and that the Survey entries were correct.

Before the Munsif, where the case came on for trial, the principal issues were Issues Nos. 4 and 5. Issue No. 4 was--Was the disputed land zirait of the plaintiff and was it in possession of defendants Nos. 3 to 7 and are the contesting defendants trespassers thereon?

Issue No. 5 was--Whether the defendants Nos. 3 to 7 had right to settle the bakasht land. The learned Munsif came to the conclusion that the lands were not the zirait lands of the plaintiffs. He held further that the lands were the occupancy holdings of the principal defendants. As regards Issue No. 5 he held that under the terms of the bharna deed the pro forma defendants were entitled to settle the lands with the principal defendants, and relying on the case of Atal Chundra Rishi v. Lakshmi Narayan Ghose (1909) 10 C.L.J. 55, he held that even if the principal defendants were not the occupancy tenants of the land from before the alleged settlement by the pro forma defendants they had in any event acquired non-occupancy right under a settlement made by the pro forma defendants. He accordingly dismissed the plaintiff''s suit. Against this decision the plaintiffs went on appeal before the learned District Judge and the learned Judge has reversed the decision of the Munsif and decreed the plaintiffs'' suit for possession.

The learned Judge considered the two principal issues, viz., Nos. 4 and 5 stated above. As regards Issue No. 4 the learned Judge says that it is not necessary to come to any decision as to whether the lands are zirait lands of the plaintiffs or not. He refers to the fact that the plaintiffs are admittedly the zemindars and relying upon the principle laid down in the case of Narsing Narayan Singh v. Dharam Thakur 9 C.W.N. 144, he holds that it was not incumbent upon the appellants that they should prove the zirait character of these lands before they can succeed. He then refers to the entry in the Record-of-Rights which is in favour of the defendants and he says that the entry in the Record-of-Rights has been rebutted by the evidence produced on behalf of the plaintiffs.

As regards the Issue No. 5, the learned Judge holds that the deed of 5th April, 1904, was a pure usufructuary mortgage and that the pro forma defendants did not acquire the rights of a tenure-holder, and, therefore, could not settle tenants on the land beyond the term of the bharna-deed.

As regards the question whether the principal defendants were occupancy tenants of the land in dispute from before the execution of the bharna-deed there is a finding of fact by the learned District Judge which cannot be upset in second appeal. One of the reasons given by him for holding that the presumption raised by the Record-of-Rights in favour of the defendants has been rebutted, namely, that there is nothing to show on what the Record-of-Rights is based, is no doubt wrong. The entry being in favour of the defendants it was not necessary for them to show on what it was based, but it was for the plaintiffs to prove that it was incorrect. Later on, however, the learned Judge refers to evidence produced by the plaintiffs and he is of opinion that this evidence rebuts the presumption raised by the Record-of-Rights. This is a finding of fact which is binding upon me in second appeal.

The only question left for decision is as to what was the effect of the settlement alleged to have been made by the pro forma defendants with the principal defendants. The learned Judge on a construction of the bharna-deed, has come to the conclusion that the pro forma defendants had no right to settle the lands with the principal defendants. I am unable to agree with the learned Judge on this point. On referring to the deed itself it appears that all zemindari rights ware given to the mortgagee. The deed provides that the mortgagee would remain in possession of the mortgaged property for the period from 1312 to 1319 and what was transferred to the mortgagee was all lands, i.e., dih, arable, waste, talkeerai and all zemindari rights appertaining to the same. The only reservation made in the deed was as regards cutting of certain trees and transplanting the same. The deed therefore is a deed by which all the zemindari rights of the mortgagors had been transferred to the mortgagee. One of the ordinary rights of a zemindar is to settle lands with tenants and if, in the ordinary course of management of the mortgaged property the pro forma defendants settled the lands with the tenant-defendants, such settlement would be good in law and the settlement holders would, in any event, acquire a non-occupancy right in the land. This was the view taken by this Court in the case of Sheo Barat Singh v. Pajarath Mahton (1919) 52 I.C. 473. There also a usufructuary mortgage had been executed in favour of certain persons and the usufructuary mortgagees during the continuance of the mortgage settled lands with certain tenants. After expiry of the term of the mortgage the mortgagor brought a suit for possession against the settlement-holders and this Court held that the mortgagee was entitled to settle lands with tenants during the continuance of his mortgage. It was held that, under Sections 72 and 76 of the Transfer of Property Act, it is one of the rights of the mortgagee to settle land with tenants. It has been pointed out by the learned Vakil for the respondent that in that case the land in dispute was found to be tenancy land, that is, land in possession of tenants before the mortgage was executed; whereas there is no such finding in the present case. To my mind this does not make any difference so far as the present case is concerned. The case of the plaintiffs that the lands were the zirait lands of the malik was found to be not true by the Munsif. The learned Judge on appeal does not consider this question and it is conceded that they cannot be proved to be zirait in the strict sense of the term. In that event, the lands at most would be bakasht lands and to my mind a mortgagee in possession, with all zemindari rights vested in him has a right to settle such bakasht lands with tenants during the continuance of the mortgage and the persons with whom the settlement is made would in any event acquire a non-occupancy right.

It has next been contended by the learned Vakil for the respondent that the settlement of the land by the pro forma defendants amounted to an encumbrance and a mortgagee in possession has no right to create an encumbrance beyond the term of his mortgage and the mortgagor is entitled to take possession of the mortgaged property free from such encumbrance and reliance has been placed upon the decision of the learned Chief Justice and Jwala Prasad, J., in M.A. No. 90 of 1920-- Mahadeo Prasad Sahu Vs. Gajadhar Prasad Sahu, . That decision has no bearing on the facts of the present case. The decision in that case turned upon the construction of a compromise decree which clearly provided that the appellant in that case was entitled to take possession of certain properties free from encumbrance created by the respondent and their Lordships held that the settlement in that case amounted to an encumbrance. In the present case there is no reservation in the bharna-deed such as was made in the compromise decree in that case. Mr. Tahir for the respondent further contends that the case made by the tenant-defendants was that the lands in dispute formed their ancestral occupancy holding and that there was no allegation in the written statement that these defendants were in possession by virtue of a settlement from the pro forma defendants, and that the case made by them having been filed, these defendants were not entitled to fall back upon a case of settlement from pro forma defendants not made by them in the written statement. It is true that no case of settlement was clearly made in the written statement, but, as I have already stated, they did make an allegation in para. 11 of the written statement that the pro forma defendants had a right to settle lands and an issue was distinctly raised on this point, and was considered by both the Courts below and it is too late now to say that no such case was made. It may be mentioned here that there is no finding in the judgments of either the Trial Court or of the Court of appeal below that the settlement by the pro forma defendants was not a bona fide settlement. In fact, the point does not appear to have been pressed by the plaintiffs although an allegation to this effect was made in the plaint. In this view of the case the present action in ejectment treating the principal defendants as trespassers cannot be maintained. I would, therefore, set aside the decree of the learned Judge and restore the decree of the Munsif. The appellants will be entitled to the costs of this Court.