Mohammad Ahsan vs State of Bihar

M.P. Verma, J.—This second appeal arises out of a decision of the learned Subordinate Judge of Biharsharif passed in Title Appeal No. 52 of 1964, by which he reversed the judgment and decree of the learned Munsif of Bihar passed in title suit No. 52 of 1961.

The plaintiff is the appellant. He had brought a title suit for declaration of title and confirmation of possession, or, in the alternative, recovery of possession, in respect of 0.68 acre of lands in plot No. 3 of khata No. 8 with an area of 0.54 acre and plot No. 8 of Khata No. 9 having an area of 0.14 acre. His case was that one Shaikh Moula Bux was the landlord of the touzi, in which this land lay. Though he was a co-sharer landlord, he managed the land of this touzi on behalf of all the co-sharers. On the 2nd August 1912, the plaintiff''s father took this land from Shaikh Moula Bux in settlement under a registered deed after paying a salami of Rs. 105 and the rent having been fixed at eight annas annually. This rent was fixed in perpetuity. When the zamindari interest vested in the State of Bihar, the karmachari began to interfere with the possession of the plaintiff, who used to hold a hat over this area, and began realising tolls from the shopkeepers of that hat. This disturbance by the karmachari cast a cloud over the plaintiff''s title and so he brought the suit.

The defence taken by the State of Bihar was that, by this settlement, the plaintiff had acquired the interest of a tenure-holder and not that of a raiyat and, that being so, the interest of the tenure-holder vested in the State after January 1956.

The learned Munsif allowed the claim of the plaintiff holding that he acquired a raiyati interest by the settlement; but, on appeal, this finding was reversed and the learned Subordinate Judge came to the conclusion that this settlement conferred permanent mokarari rights, that is, a tenure-holder''s interest, on the plaintiff and, after the abolition of the zamindari, that interest vested in the State.

Mr. Asghar Hussain, learned Counsel for the appellant, has seriously contended that, on a plain reading of the deed of settlement, it is clear that it conferred raiyati interest on the plaintiff and not the interest of a tenure holders. This deed of settlement is Exhibit 1 and it has to be gone through and interpreted carefully. The learned Subordinate Judge appears to have been obsessed by the idea that this deed created perpetual mokarari interest in the settlee and that the land settled was put to no agricultural use by the plaintiff but he held only a hat in this area. This deed recites that Shaikh Moula Bux owned five annas and odd proprietary interest in the touzi, but he was managing the affairs of all the co-sharers and an area of 1 bigha 5 kathas of land (ghairmazrua) was in his khas possession. The deed further clearly recites that the mokararidar, after properly cultivating the land, should appropriate the produce thereof and pay rent to the landlord. Further on, this deed also recites that the mokararidar was at liberty to construct houses on the land or lay out orchard and hold hat thereon or use it as kasht land or for other works. So a plain reading of Exhibit 1 shows that, by this settlement, only a raiyati interest was created in the plaintiff and not the interest of a tenure-holder. In Section 5 of the Bihar Tenancy Act, the term "tenure-holder" has been defined to mean primarily a person who has acquired from a proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it. The term "raiyat" has further been explained to mean primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by means of his family or by hired servants etc. So, generally, it is clear that the main difference between a tenure-holder and a raiyat lies in the fact that the former has to collect rents or settle tenants on the land and a raiyat has a right to hold the land and make personal use of it and pay rent therefore to the landlord. There is no evidence on record that the plaintiff has settled raiyats over any portion of the land in question or that there are raiyats on the land from whom he has collected rents. Collecting rents from raiyats is something different from realising tolls from shopkeepers in a hat held for a day or so in a week. In this view of the matter, the plaintiff, by virtue of the deed of settlement, has got the rights of a raiyat in this land and these rights cannot be affected by the provisions of the Bihar Land Reforms Act. The learned Munsif has also pointed out that this plaintiff has acquired other raiyati lands and the rents of those raiyati lands were amalgamated with the rent of the land in suit. This is possible only when those other lands and the land in suit have the same character. If the plaintiff is a tenure-holder in resect of a certain piece of land, its rent cannot be amalgamated with the rents of those other lands in respect of which he is a only raiyat.

Learned State Counsel appearing on. behalf of the respondent has argued that the court of appeal below has held that, at least, plot No. 8 of Khata No. 9 was ghairmazrua-am land and so it could not be settled with the plaintiff''s father. In view of the several decided cases, it cannot be said that the landlord is absolutely debarred from making any settlement of ghairmazrua-am land. The landlord has got a right to settle even ghairniazrua-am land; but such settlement must be subject to the customary rights of the . villagers, if any, which they may have. over the land (vide Mussainmat Husenbano v. The State of Bihar 1959 BLJR 310. If a piece of ghairmazrua-am land is settled with any person and he remains in possession over it for twelve years, he can acquire the rights of an occupancy raiyat. Any way, when the entire evidence on record is taken into account, it is clear that the learned Subordinate Judge has misinterpreted . Ehxibit 1. It may be pointed out that there is no dispute about the identity of the land and in the written statement, the State has only alleged that the landlord had no right to settle it and nowhere did it state that the land was never settled with the predecessor-in-interest of the plaintiff.

The result, therefore, is that the judgment and decree of the learned subordinate Judge are set aside and those of the learned Munsif are restored. The appeal is, accordingly, allowed; but. in the circumstances of this case, there will be no order as to costs.

Anwar Ahmad, J.

I agree.