Mirtunjay Singh and Others vs Juga Uraon and Others

Beevor, J.—This is an appeal against a decision of the Additional Subordinate Judge of Hazaribagh reversing a decision of the Munsif of Hazaribagh and decreeing the suit for declaration of title in respect of eight annas odd share of land which have been attached u/s 146, Criminal P.C.

The land in question was within the zemindary of defendants 9 and 10 who have been held to be mundari khuntkattidars, which is in accordance with the survey record of rights, though an attempt was made on behalf of the plaintiff, respondents to dispute this fact in the lower Courts. The plaintiffs are not mundas. The plaintiffs allege that they got settlement of certain land in 1922 from the father of defendants 9 and 10 and made some reclamation extending beyond the limits of the land then settled with them. They allege that they took a further settlement in 1937 from defendants 9 and 10. The lower Courts have held that as the plaintiffs were not mundari khuntkattidars any settlement with them was invalid under the provisions of Section 240, Chota Nagpur Tenancy Act. The lower appellate Court has, however, held that the plaintiffs were entitled to a decree on the basis that they have acquired rights of occupancy by adverse possession in accordance with the decision in Lal Sahi Palian and Others Vs. Deba Munda and Another, . In that decision in Lal Sahi Palian and Others Vs. Deba Munda and Another, , the plaintiffs sued the defendants for possession of lands alleging that the defendants had dispossessed them. They claimed to have themselves made the lands into korkar by preparing them for paddy cultivation. It was decided that it is not merely a tenan or resident of a village who can make korkar in that village, and that where the tenants'' reclaimed lands of a certain village and mundari khuntkattidars sued as maliks to eject them after the expiry of two years from the commencement of that reclamation, they could not be ejected from the land as the suit was barred u/s 64(3), Chota Nagpur Tenancy Act.

It was urged for the respondent that there is no finding by the appellate Court that the plaintiffs actually made korkar of the land now in suit. It is true that the plaint and the written statement do not mention the word korkar. The plaintiffs had claimed to have reclaimed the land in suit but did not state specifically in their plaint that they had reclaimed it as paddy land. By a reference to the evidence, however, I have ascertained that it was the case of both parties that the land had been converted into paddy land, and it is also clear that in the trial Court there was a dispute in the evidence as to whether the land had been reclaimed by the plaintiff or by the defendant, and the trial Court accepted the plaintiff''s evidence on this point. Now, the appellate Court in dealing with the question of possession has stated, after referring to certain-documents:

Then again there is the oral evidence of the plaintiffs'' witnesses whose evidence has been believed by the learned Munsif for reasons recorded by him in his judgment and which I do not consider necessary to reiterate here.

Later he stated:

The position therefore is this that plaintiffs have been in possession of the suit lands under an invalid lease ever since March, 1923 without any objection by the landlord and hence I am of opinion that they have acquired a right of occupancy by adverse possession: vide Lal Sahi Palian and Others Vs. Deba Munda and Another, . There is nothing in Chap. 18 of the Chota Nagpur Tenancy Act to prevent accrual of occupancy rights in korkar lands brought into cultivation out of the mundari kuntkatti lands: vide Lal Sahi Palian and Others Vs. Deba Munda and Another, .

If these passages are read together, I think it is impossible to understand the lower appellate Court''s judgment as meaning anything less than that he accepted the case that the plaintiffs reclaimed the land though he has not said so in so many words.

It is also clear, as I have said that the reclamation which both parties were putting forward was reclamation and conversion of the lands into paddy lands from jungle or upland and this amounted to the creation of korkar provided there was no legal bar to prevent the land or reclamation from becoming korkar.

It is urged on behalf of the respondents that Section 64(8), Chota Nagpur Tenancy Act, does not apply to lands situated in a mundari khuntkatti tenancy. Section 64(3), runs as follows:

Where the consent of the landlord is required by this section for the conversion of land into korkar, 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 an application to the Deputy Commissioner for the ejectment of the cultivator and no cultivator who is a tenant or resident of a village, shall be ejected from land of that village, which he has commenced to convert into korkar, otherwise than upon such an application.

Now strictly speaking it is clear that the decision in Lal Sahi Palian and Others Vs. Deba Munda and Another, is an authority for the proposition that this Sub-section does apply to lands in a mundari khuntkattidari tenancy. But the argument may be, and has been put in a slightly different form, namely, that the right to create korkar in a mundari khuntkatti tenancy is restricted by Section 240 of the Act. This section contains a number of Sub-sections. Sub-section (1) provides that no mundari khuntkattidari tenancy or a portion thereof shall be transferable by sale subject to the proviso with which we are not concerned. Sub-section (2) deals with that proviso. Sub-section (3) provides that no mortgage of a mundari khuntkattidari tenancy or portion thereof shall be valid subject to the exception with which we are not concerned. Sub-section (4) provides that no lease of a mundari khuntkattidari tenancy or any portion thereof shall be valid except of two kinds with which we are not concerned. Sub-section (5) provides a further restriction on certain mortgage which would otherwise be valid. Sub-section (6) states:

No transfer of a mundari khttntkattidari tenancy or any portion thereof, by any contract or agreement made otherwise than as provided in the foregoing Sub-sections, shall be valid; and no such contract or agreement shall be registered.

Sub-section (7) provides that nothing in the foregoing Sub-sections shall affect certain transactions made before the commencement of the Chota Nagpur Tenancy Act. In my opinion, it is quite clear that if a landlord merely gives a consent to the creation of korkar in a particular village or area to a particular person, that consent itself does not create any tenancy and does not, therefore, amount to any transfer or alienation of any portion of his interest by the landlord. I can, therefore, find nothing in Section 240 of the Act which will prevent the landlord from giving consent to a person, who is not a mundari khuntkattidar for converting the land into korkar in the mundari kuntkattidari tenancy. Having held that Section 240 provides no such prohibition it follows that if consent could be granted to a mundari khuntkattidar to create korkar in a particular area, consent could be granted to a person who is not a mundari khuntkattidar to create korkar in the same area or tenancy. The decision in Lal Sahi Palian and Others Vs. Deba Munda and Another, clearly shows that consent may be given to a mundari khuntkattidar to create korkar in a mundari khuntkattidari tenancy even though he is not a raiyat within that tenancy. I, therefore, hold that consent may also be given in similar circumstances to a person who is not a mundari khuntkattidar. There was, therefore, nothing to prevent the landlord giving consent to the present plaintiff-respondents creating korkar.

It is clear from the findings of the lower Courts, as I have stated, that the plaintiffs did actually create korkar in the land, and in these circumstances I find that Section 64(3), Chota Nagpur Tenancy Act is applicable, and no application to eject the plaintiffs having been filed before the Deputy Commissioner within two years of the date when they started converting the land into korkar, they cannot be ejected.

Strictly speaking I think that it is incorrect to say that the plaintiffs have acquired an occupancy right or title by adverse possession. They have acquired a title under the provisions of the Chota Nagpur Tenancy Act by acts which are permitted in this area under that Act. For these reasons I do not think it is necessary to discuss at any length the decision of the Privy Council in Madhavrao Waman v. Raghunath Venkatesh AIR 1923 P.C. 205 which was cited on behalf of the respondents for the proposition that where an alienation is prohibited in the interest of the estate, a person cannot acquire a-title to such property by adverse possession for 12 years.

In order to make the judgment complete, I should mention that after the application of Section 64(3), Chota Nagpur Tenancy Act, Section 67 of that Act comes into force. That section provides that every raiyat who cultivates or holds land which he or any member of his family has converted into korkar shall have a right of occupancy in such land, notwithstanding that he has not cultivated or held the land for a period of twelve years. It is under this section that the title accrues to the plaintiff respondents.

For these reasons, I come to the conclusion that the-appeal fails and should be dismissed.

In view, however, of the fact that the plaintiff-respondents framed the case in the trial Court and even before the lower appellate Court on the basis of a lease or leases which have been held to be invalid, and they failed to put clearly in the plaint the claim of title based on Section 67, Chota Nagpur Tenancy Act, on which they have succeeded, there will be no order for costs in this Court.

Leave to appeal under the Letters Patent is refused.