Mita Dusadh and Others vs Anup Mahto

Macpherson, J.—This appeal is preferred by the plaintiffs from a decision in appeal of the Subordinate Judge of Patna who affirmed the decision of the Munsif of that station dismissing their suit for recovery of possession of certain land.

The litigation relates to 11 plots extending to 23 53 acres which constitute khata No. 463 of the Record of Rights of village Karaja in the Patna District finally published in 1910. The proprietor is Kaisar-i-Hind under whom Ramlal Dusadh, Mita Dusadh and Rampat Dusadh son of Chintaman are shown as tenants in equal shares. All the plots are shown as ''chauki'', and the status as ''jagir jakrohi'' or jagir for guarding the roads. It is common ground that the land is a service-grant of a road-chaukidar, and Mita, the first appellant is the road-chaukidar. The khatian of the tenant shows also that the lands are in possession of Anup Mahto as shikmi. The subordinate khatian (No. 2) of Anup Mahto shows that he holds under ''Ramlal Dusadh and others'' under khata No. 463 and that the lands are ''chauki''. The implication is not, as the Munsif thought, that the Dusadhs are described as tenure-holders. Had that been so they would have been entered in the khewat instead of which they are entered in a khatian as raiyats are.

The plaintiffs Mita, Rampat, the sons of Jodha, the son of Ramlal, and the sons of Budhu, residents of Dariapur sued Anup Mahton, Eon of Dhanukdhari Mahto, for recovery of the lands in khata No, 463 stating that they are members of a Mitakshara joint family wilh Mita as karta and sue as reprsenting all the members of the family. They set out that the land is their raiyati kasht forming their jagitdari interest with occupancy light in lieu of rendering service as chaukidar and they are entered as kashtkar tenants in the Record of Rights with defendant as darjotdar. They claim the light to eject him in virtue of then jagirdari inteiest but to avoid objection they in 1328 served notice on him timer the provisions of Sections 49(b) of the Bengal Tenancy Action reply to which the defendant falsely set up an ancestral occupancy right in the land whereas his possesion was unlawful from the beginning of 1330 and they have thus been compelled to sue for ejectment and mesne profits.

The defendant claimed an occupancy-right both because the plaintiffs were recorded in the survey khatian as tenure-holders, and also in virtue of possession from time immemorial, set out that in 1904 and on other occasions his possession as occupancy raiyat had been found by the Court, that the area of the ancestral kasht was 28 bighas, that 3 bighas had been settled under a permanent lease of 1902 at a jama of Rs. 6 while some parti land brought under cultivation by him had been wrongly entered in khata No. 2 and contended that in any case plaintiffs could not eject him.

It is now common ground that in 1902 Rampat Dusadh made a doami or perpetual settlement of 3 bighas at two rupees per bigha with Dhanukdhari Mahto, that previously the family of the defendant held 28 bighas of the road-chaukidar''s jagir and that the balance of the land in suit had been gradually annexed to the old holding by the defendant''s family and had been in their possession at least two years before the Record of Rights was completed. The plaintiffs'' case as to the 3 bighas was that Rampat had no right to settle that area in 1902. The rental of Rs. 118-3 consist of Rs. 112 for the 28 bighas at Rs. 4 per bigha and Rs. 6 the fixed rent of the 3 bighas Bettled in 1902.

The suit was obviously framed upon the particulars entered in the Record of Rights (with this exception that there is no entry as to occupancy right in the Record of Rights and the chief issue was whether defendant was an occupancy-raiyat in respect of the lands or an under-raiyat of the plaintiffs. The defence sought to rebut the presumption in plaintiff''s favour which attaches to the entry in the Record of Rights by proving that the plaintiffs'' tenancy is a tenure and that the plaintiffs are tenure-holders within the meaning of the Bengal Tenancy Act. The learned Munsif who misapprehended the Record of Rights and its effect, found, mainly on the entry in the Thak Survey of 1843 of the chaukidar or ''faujdar'' of that time, an ancestor of the plaintiffs, as ''malik'' with one Prasad Singh as ''raiyat'', the fact that tenants had been continuously cultivating the land from before 1843, and the possession by the defendant of the 28 bighas since 1898, that the plaintiffs were not occupancy-raiyats but service-tenure-holders and that the defendant was not their under raiyat but an occupancy raiyat who could not be ejected either from the original holding or from the six bighas which he had annexed to that holding and of which he had been in possession for more than twelve years before the suit. As to the 3 bighas, the Munsif held that the co-sharers had ratified the action of Rampat and they could not eject the defendant. He further held that Section 181 of the Bengal Tenancy Act did not affect the case, being of opinion that it merely protects the interest of the superior landlord and is not a bar to acquisition of occupancy rights as against the service-tenure-holder. He, therefore, dismissed the suit.

The appeal of. the plaintiffs was also dismissed by the Subordinate Judge who held (1) that defendant had held since 1898 at least (2) that the land had been let continuously to tenants and the Munsif had correctly held that the plaintiffs are only tenure-holders so that the defendant must be a raiyat and have a right-of occupancy and (3) that Sections 181 was inapplicable as it only operates to prevent the jagirdar himself from acquiring an occupancy right, though possibly the right of the defendant might be disputed by the person who created the service-tenure.

In second appeal it is urged that the finding of the lower Appellate Court as to the status of appellants on which the main issue was decided, is vitiated by the fact that that Court follows the Munsif who misdirected himself in respect of the Record of Rights. This contention cannot be gainsaid. The Munsif erroneously thought that the defendants'' shikmi khatian describes the plaintiffs as tenure holders and that the framer of the Record of Rights was, therefore, under some misconception regarding the status of the parties. Such is not the case. The absence of a khewat for the tenancy of plaintiffs indicates that it was not recorded as a tenure; it is entered as Khata No. 463 in a khatian in which the status is shown as the jagir of a road-chaukidar and every plot is separately shown as ''chauki'' and in shikmi to defendant. Defendant''s khatian also shows each plot as chauki (plot No. 859 also ''under'' this khatian) and the tenancy as subordinate to raiyati khata No. 463. This entry supports the plaintiff''s case that the tenancy is not a tenure, and it was upon the defendant to rebut it. The area of the jagir can afford no presumption in his favour, nor the purpose for which the tenancy was acquired by the Dusadh road-chaukidar who holds it "in lieu of wages for services to be rendered." The description of the faujdar of 1843 as ''malik'' is equivocal,since a raiyat is no less in, that relation to his under-raiyat than a tenure-holder is to his raiyat. No local custom or usage in this regard is pleaded or proved by the defendant though there are forty road-chaukidars with similar jagirs attached to the same Police station. But it is contended on behalf of the respondent that as the chaukidars haves been in the habit of letting out the land or most of it, it has in their hands become a tenure, and reliance is placed upon the decision in Mohesh Jha v. Manbharan Mia 5 C.L.J. 522. That decision is distinguishable on the facts. In that case the tenancy extended to 325 bighas and was created by an instrument which conveyed "various rights which are not, ordinarily speaking, granted in conjunction with an occupancy holding". Here the area is considerably less than 100 standard bighas and the position of plaintiffs is practically the same as that of a raiyat It would appear that the intention of the grantor was to make a raiyati grant. It may be that the definitions of ''tenure holder'' and ''raiyat'' in the Bengal Tenancy Act are not exhaustive but the mere sub-letting of his holding by a raiyat, however persistent, would hardly transform him into a tenure-holder. In the present instance the plaintiffs have long been anxious to recover their lands and the circumstances are altogether against the interest of the service-holder being regarded as that of a middleman. The fact that the tenancy is a ''tenure'' under the Local Cess Act Is irrelevant. It is clear that the defendant has failed to rebut the entry in the Record of Rights or to prove that the plaintiffs are tenure-holders, and accordingly u/s 5(3) of the Bengal Tenancy Act he cannot himself be a raiyat.

Sir Sultan Ahmad then contends on behalf of the respondent that even if he does not possess a right of occupancy under the Bengal Tenancy Act in the plaintiffs'' jagir land, the latter are never the less for several reasons not entitled to eject the respondent.

It is urged in the first place that the matter is res judicata as to the whole or at least as to part of the area in suit. In Suit No. 54 of 1914 Hafiz Saiyid Mohiuddin and Indarjit Singh sued Kalicharan Mahto the uncle of defendant and Ramlal, Rampat and Mita faujdars for recovery of possession of eleven bighas of land averring that Ramlal had settled that area with them out of this chaukidari jagir after private partition between the three chaukidars. The learned Munsif mentions that the area in dispute was four bighas and Indarjit Singh had apparently taken ijara of one-third of Ramlal''s interest in eleven bighas of the jagir in Kareja. Indarjit had, however, been convicted in 1904 on a charge of theft of the crops of the land, and he and his co-plaintiff asked that the suit be decided on the special oath of Kalicharan, and thereon it was held that the land in suit was not the jagir of Ramlal and that Kalicharan had a kasht and occupancy right therein and the plaintiffs being, therefore, entitled to no relief whatever, the suit was dismissed with costs on 5th May, 1905. Prima facie if the land then in controversy was not jagir, it is not included in the land now in suit. Kalicharan, now represented by defendant, did not then plead nor depose that he was an occupancy-raiyat in that land under the jagirdars. The Munsif negatived the plea of res judicata on the ground that no question fell to be decided between the defendants Kalicharan and the other defendants who were merely impleaded pro forma and the plea was not raised in the lower Appellate Court. It is obvious on the plaint, judgment and decree in the suit that the Court did not intend to and did not determine any question between the two sets of defendants. This plea of respondent is without foundation even as regards the area then in suit.

Much reliance is placed on the plea that defendant has an occupancy-right u/s 19(1) of the Bengal Tenancy Act having acquired it under Act X of 1859 or previously. Prasad Singh is shown in the Thak Survey of 1843 as raiyat in the jagir and it is contended that defendant is his descendant. But this plea fails on the facts. The Munsif held that Prasad Singh was a Babhan and could not be the ancestor of defendant who is a Kurmi, that it was Dhanukdhari Mahto father of defendant (who when deposing was only 24 years of age), who (of defendant''s family) first came on the land, and that all that could be said as to length of possession was that Dhanukdhari was in 1898 in possession of the original holding. The Subordinate Judge held that it was not necessary to decide the point. It is, however, both necessary and very easy to determine it. The claim to descent from Prasad Singh is a very recent invention. Plaintiffs in reply adduced the testimony of the real descendants of Prasad Singh, and there is no possibility of doubt on the oral and documentary evidence on the record that the Munsif''s decision is correct. Defendant and his uncle were Mahtos until quite recently and defendant even signed his written statement as Anup Mahto. Indeed Kurmis were not designated Singh in the Patna District eighty years ago or even within living memory and when once they adopt the title they do not drop it again. There is no satisfactory proof that Kurmis held the tenancy before 1898, far less that they held it before the Bengal Tenancy Act came into operation.

It is then urged that even if Prasad Singh was not an ancestor of defendant, the fact that he was an occupancy raiyat constituted in some manner a ''change of incident'' so that future sub-tenants would be occupancy raiyats I can find no warrant, in precedent or principle for such a result even if Prasad Singh had held under a tenure holder. And as is well-known, even in the case of zirat land the fact that an occupancy-right by one cultivator has been acquired but has ceased to exist, does not make it any easier for a future cultivator of the land to secure a fight of occupancy therein. Moreover, as has been indicated Prasad Singh did not hold under a tenure-holder.

It was next urged that in any case the respondent is in adverse possession of the limited interest of a right of occupancy for more than twelve years before suit. The point is not clearly raised in the written statement and the issues of limitation and estoppel were not pressed in the trial Court. Moreover, an unfounded claim to be an occupancy raiyat would not by lapse of time convert him into one, however long it is persisted in Mohammad Mumtaz Ali Khan v. Mohan Singh 74 Ind. Cas. 476 : 45 A. 419 : AIR 1923 PC 118 : 21 A.L.J. 757 : 26 O.C. 231 : 45 M.L.J. 623 : 9 O. & A.L.R. 901 : 10 O.L.J. 383 : 19 L.W. 283 : 39 O.L.J. 295 : 28 O.W.N. 840 : 33 M.L.T. 321 : 50 I.A. 202 (P.C.) and still less if Section 181 applies a statutory bar to occupancy-right. But the facts adduced in support of the claim to adverse possession of an occupancy-right do not support the plea. Three judicial proceedings arose between the parties in 1904. A proceeding u/s 145 of the Code of Criminal Procedure merely dealt with the possession at that time of the 31 (28+3) bighas. In the contemporaneous criminal case brought by Kalicharan Mahto u/s 379 against Indarjit Singh (who had taken ijara of Randal''s one-third share in eleven bighas in Kareja,) in which Indarjit and others were convicted for appropriating the crops on the demised land, the question at issue was who had raised the crop on the disputed area, while in Suit No. 54 of 1904, already referred to, the claim of defendant''s uncle was not to an occupancy-right under the jagirdars. This plea clearly fails.

The argument in appeal has to a considerable extent circled round the question whether an occupancy-right can at all accrue in a service-tenure. Learned Counsel for the appellant gave it this turn by opening with the statement that the point for determination was whether such a right could arise in chaukidari chakran land. In point of fact the tenancy of the plaintiffs is not chaukidari chakran land as defined in the Bengal Chaukidari Act V of 1876 since Mita is not village chaukidar or appointed to keep watch in any village and since no service is to be rendered to any zemindar in respect of any land of the tenancy. The plaintiffs-appellants are entitled to succeed if an occupancy-right cannot arise in their own particular jagir, even if it can arise in service-tenures of a different character. It would not follow from the fact that a cultivator in a service-grant covering a pargana or even a village can secure occupancy rights in his tenancy, that a cultivator in a service-grant extending, (let us instance), to less than a hundred standard bighas in Patna or to lees than five hundred bighas of jungle and upland in Chota Nagpur, can do so. And in our more modern nomenclature the term " service-tenuie " really signifies ''service-tenancy'' and does not imply in Section 181 (as the Courts below have assumed) a tenure in contradistinction to a holding: indeed to make that fact more clear Section 77 of the Chota Nagpur Tenancy Act, 1908, adds the words ''or holding'' to the words in Section 181 "Nothing in this Act shall affect any incident of a ghatwali or other service- tenure".

In support of the contention that an occupancy-right cannot be acquired in service grants of a Police character, Mr. P.K. Sen referred to Mohesh Majhi v. Pran Krishna Mandal 1 C.L.J. 138 where it was held in respect of a ghatwali tenure that the growth of occupancy or non-occupancy rights is inconsistent with the nature of service-tenures, though as custom or local usage may grow up in any local area as to recognition of occupancy-rights, and, be binding on successive ghatwals, to Upendra Nath Hazra v. Ram Nath Chowdhry 33 C. 630 where Maclean, C.J. following the ruling cited said;

"I think that upon principle, having regard to the nature of ghatwali lands, the acquisition of occupancy rights in these lands is inconsistent with the incidents of such tenures; and this view gains support from Section 181 of the Bengal Tenancy Act, which seems to me to be inconsistent with the view of the acquisition of such rights in ghatwali lands. This Conclusion seems to be in accordance with Mr. Justice Mitra''s view on the point expressed in the case cited, that any such right is not susceptible of acquisition in ghatwali land"; to J afarruddin Laha v. Jamini Ballav Sen 46 Ind. Cas. 341 : 23 C.W.N. 136 : 28 C.L.J. 249 where it was held that a right of occupancy cannot be acquired in a kotwali jagir which was a service-tenure under a zemindar, and to Section 181 of the Bengal Tenancy Act. Though the decisions cited relate to Bengal and it is never very safe to assume that the conditions are similar in this Province, no exception can be or is taken to the principle that from their nature it is an incident of service-tenancies of a Police character that occupancy rights ordinarily do not accrue in them even when they are of the nature of tenures, Save u/s 183 of the Bengal Tenancy Act, and especially when as in the present instance they are of the nature of raiyati holdings. Further, the view of the Courts below as to the import of Section 181 of the Bengal Tenancy Act cannot be supported; that provision preserves from the operation of the Act the incident mentioned as much in favour of the grantee as in favour of the grantor of the service-tenure. Accordingly no statutory right of occupancy can accrue in a service tenure of a Police character and any encumbrance on the tenancy including a right of remaining upon it, therefore, ceases with the incumbency of the service tenant who created it and is not binding on any succeeding incumbent who has not ratified it or acquiesced in it for the statutory period of limitation. There is one exception. A custom, usage or customary right that occupancy rights can arise in such tenancies would not be inconsistent with the provisions of the Bengal Tenancy Act and in fact a local custom or usage in that regard is found in certain ghatwali tenures in this Province especially in Chota Nagpur, that is to say, in real tenures as opposed to holdings of a ghatwali character. But, as already stated no such custom or usage is alleged or proved by the defendant. And where as in this instance the service-tenancy'' is itself of the nature of a holding, the presumption is strong against a custom or usage that occupancy-right accrues to an under-tenant thereon and certainly not less strong than in the case of an under-raiyat under a raiyat who himself possesses a statutory right of occupancy.

Sir Sultan Ahmad has sought to bring the case of the respondent within the decisions in Ram Kumar Bhattacharjee v. Ram Newaj Rajguru 310. 1021 : 8 C.W.N. 860; Sitakanta Roy v. Bipradas Charan 46 Ind. Cas. 485 : 22 C.W.N. 763 : 27 C.L.J. 550 and Khetra Mohun Ghose and Another Vs. Lakhi Kanta Pal and Others, where it was held that an occupancy-right could arise in a service-tenancy under Act X of 1859. The first decision relates to a tenancy, from 1846 in chaukidari chakran land, the second to a tenancy in a ghatwali tenure and the third to a service-tenancy under a zemindar. To my mind this question merits further consideration when an appropriate occasion arises, (as indeed appears to have also been subsequently contemplated by Mookerjee, J., who delivered the first of these decisions). See Superintendent and Remembrancer of Legal Affairs Vs. Troilokhya Nath Chatterjee, especially as regards tenancies in jagirs of a public servant which are of the nature of raiyati holdings. But even if such an occupancy right could arise under Act X of 1859 and could do so in Bihar no less than in Bengal to which those decisions relate, it is a complete answer in the present in stance that the defendant has, as already indicated, failed to establish that he ever held a right of occupancy under Act X of 1859 or even that he was a tenant prior to the operation of the Bengal Tenancy Act. Accordingly so far as the first tenancy of 28 bighas and the additional lands which the tenant annexed thereto as part thereof, are concerned, the defendant has no right to remain thereon without the consent or against the will of his landlords, the plaintiffs. The notice to quit has been proved and is adequate whether it is or is not regarded as a notice u/s 49 of the Bengal Tenancy Act. As stated by Sir Sultan Ahmad this tenancy includes plots Nos. 849 to 857 and part of plot No. 859.

The case in respect of the three bighas covered by the tenancy of 1902 which consists of plot No. 858 and the remainder of plot No. 859 is, however, different. The instrument which created it purports to confer a permanent tenancy and it was good against the executant Rampat and it is good also against Mita, the present road-chaukidar, who has impliedly ratified it by allowing more than twelve years from the date of his appointment to elapse without questioning it. During his term of office, the respondent cannot be ejected. The suit must fail in respect of it.

Accordingly this appeal is allowed in p Article The suit is decreed in respect of plots Nos. 849 to 857 both inclusive and part, that is so much, of plot No. 859 as remains after the portion of it covered by the instrument of 1902 is excluded. In respect of the lands covered by that instrument which consists of plot No. 858 and part of. No. 859, the decree under appeal is maintained. If the exact land demised in plot No. 859 cannot be ascertained, there will be allotted to the respondent and demarcated by the Court at his instance so much of the land of plot No. 859 adjoining plot No. 858 as will with, plot No. 858 make up an area of three local bighas.

Plaintiffs are also entitled to mesne profits in respect of the land recovered from the beginning of 1330 Fasli, to the date of delivery of possession and to interest thereon, They are also entitled to five-sixths of their costs in all the Courts with future interest, Interest will be at six per cent, per annum.

Kulwant Sahay, J.

I agree.