Mohammad Hossain vs Mangilal Jaipuria

Jwala Prasad, J.—This is an appeal by defendant Muhammad Hussain. On 23rd December 1924 a holding situate in Mauza Kakri Sole belonging to one Niroda Bagdini was sold to him by a registered sale-deed (Ex. B). The plaintiff is a pardhan of Kakri Sole and the suit out of which this appeal has arisen was brought by him for recovery of possession of the holding on the allegation that the act of Niroda Bagdini in selling the entireii holding constituted an abandonment there of and consequently the holding reverted to the plaintiff. Niroda Bagdini became a Mussalman and is now living in village Chakulia where according to the case of the plaintiff the defendant resides: The defendant resists the allegation of the plaintiff and contends that there has been no abandonment at all and that he resides in Kakri Sole where the land in question is situate. This contention is based upon a notification issued u/s 46(6), Chota Nagpur Tenancy Act. The rules framed under the section were published by this notification; No. 310-11-5 R.T., dated 29th June 1924. Rule 2 of these rules confers on a raiyat the right to transfer his entire holding or with the consent of the Deputy Commissioner a part thereof to another person who is,

of the same tribe or caste as himself and resides in the same village or an adjoining village belonging to the same landlord.

The Courts below have held that the defendant does not reside in the same village, namely, Kakri Sole, but in a different village Chakulia. This finding is disputed by the learned advocate on behalf of the defendant-appellant. The finding however is one of fact based on appreciation of the evidence and cannot therefore be challenged in second appeal.

It has also been held by the Courts below that Muhammad Hossain the transferee-defendant is not of the same tribe or caste as the original tenant Niroda Bagdini although she became a Mussalman. The learned advocate for the appellant contends that this is wrong inasmuch as Niroda Bagdini by conversion became a Sheikh and Muhammad Hussain is of the same caste or tribe. There is some force in this contention. True, there is no caste among the Muhammadans, but by conversion Niroda Bagdini came to belong to the same tribe as Muhammad Hossain; and the words "same tribe or caste" were to my mind used in the Act to embrace a case of this nature. But the finding does not bring the case within the purview of the notification referred to above, for the transferee must not only be of the same tribe or caste as the transferor, but must live in the same village or an adjoining village belonging to the same landlord. The finding of the Court below cannot be disturbed.

The case however stands on an altogether higher footing. The notification under Clause (6), Section 46, validates a transfer which would be invalid under Clause 1, Section 46. Under Sub-Clause (b), Clause (1), Section 46, no transfer "by sale or gift" by a raiyat is "valid to any extent." In this case the plaintiff says that the transfer is not binding upon him under Clause (2), Section 46, which says:

No transfer by a raiyat of his right in his holding or any portion thereof shall be binding on the landlord, unless it is made with his consent in writing.

The notification therefore has no application to the present case and the Courts below have missed Clause (2), Section 46. An attempt was made by the defendant to show that the transfer was made with the consent of the landlord inasmuch as he accepted salami. This is a question of fact and has been negatived by the findings of the Courts below. It has never been pleaded in this case that there was any �consent in writing" as is required by Clause (2) of the section. Therefore the transfer in this case, whether the defendant be of the same tribe or caste as the transferor Niroda Bagdini or both reside in the same village, is not binding upon the plaintiff landlord. The decree made in favour of the plaintiff by the Courts below must therefore be maintained. The decree is to the effect that the plaintiff will be entitled to recover possession of the property:

subject to the right, if any, of Nirode (the original tenant) who is not a party to this suit to apply u/s 73, Clause (3), Chota Nagpur Tenancy Act, for being restored to possession.

This form of decree opens out a door to future litigation and therefore the parties, who are present in Court personally, through the intervention of their respective advocates, have settled their dispute on the following terms. The plaintiff has agreed to recognize the transfer and to allow the defendant to remain in possession of the property in place of the original tenant Niroda Bagdini, provided the defendant pays to the plaintiff by 9th March 1932 Rs. 200 as salami, which includes the back rents, and enhances the rent of the land in dispute from Re. 1-8-0 to Rs. 5 a year.

The enhanced rent will be payable from the month of Aswin of the current year. The aforesaid sum will be paid by the defendant to the plaintiff within the time specified above in addition to the legal costs incurred by the plaintiff in this Court and in the Courts below which costs the plaintiff is entitled to recover from the defendant in any case, either the aforesaid sum of Rs. 200 is paid or not. The defendant must make the deposit in the Court below on or before 9th March 1932 as stated above, failing which the appeal will stand dismissed with costs.