Radhashyam Naik and Others vs Sripati Naik and Others

S.B. Sinha, J.—This appeal arises out of a judgment and decree dated 28th April, 1975 passed by Shri R.B.P. Sinha, Sub-ordinate Judge, Jamshedpur in T.S. No. 34 of 1969 whereby and whereunder the said learned court decreed the plaintiffs-respondents'' suit. In view of the facts that the facts of the case have been stated in details by the learned court below in his judgment, it is not necessary to traverse the facts over again herein.

Suffice it to say that the plaintiffs filed the aforementioned suit claiming, inter alia, the following reliefs:

(a) For a decree for declaration of his title in the lands described in the schedule below;

(b) For a decree for recovery of possession of the said lands by removing the defendants therefrom;

(c) For a decree for declaration that the plaintiff is entitled to the aforesaid 200 mounds of paddy or the value thereof amounting to Rs. 6000/-.

(d) For a decree directing defendant No. 6 to handover the aforesaid paddy or to pay the value thereof to the plaintiff;

(e) For costs of the suit;

(f) For any other relief or reliefs to which the plaintiff may be found to be entitled in law and equity.

The plaintiff proceeded on the basis that his father Baikunth Naik was a Ghatwal appointed by the landlord in terms of Bengal Regulation No. 29 of 1814. As the said Baikunth Naik became old, the land given to him by the landlord was surrendered and the landlord resumed the possession and executed a fresh sanad in the year 1940 (Ext. 7) in favour of the original plaintiff. The plaintiff contends that by reason of the said sanad he came in possession and continued to be in possession thereof when the Bihar Land Reforms Act, 1956 (hereinafter to be referred to as the ''Act'') came into force on 1.1.56 and he being in possession of the land on the said date became a statutory tenant under the State of Bihar in terms of the provisions of section 6 of the Act. The plaintiff further stated that upon vesting of his tenure in the State of Bihar under the Act he filed a return in terms of section 3(B) of the Act with respect to his aforesaid tenure and also filed an application to the Collector in Form ''K'' as provided in the Rules framed under the Act for fixation of fair rents in his name. It is further stated that defendants who had a greedy eye over the properties in suit started to disturb the possession of the plaintiff resulting in initiation of a proceeding u/s 145 of the Code of Criminal Procedure which was ultimately decided against the plaintiff. The plaintiff filed the aforementioned suit after the said decision in the proceeding u/s 145 of the Code of Criminal Procedure. Defendants 1, 3 and 4 filed one set of written statement and another set of written statement was filed by the defendant No. 5. However, in both sets of the written statements the defendants'' defence was common. The defendants pleaded in the written statements aforementioned that inspite of execution of Ext. 7 the father of the original plaintiff, namely, Baikunth Naik continued to be in possession of the properties in question alongwith his son i.e. Hardhan Naik and the other defendants and even all the sons of Baikunth Naik were in possession of the properties in question, in the year 1956 when the Bihar Land Reforms Act came into force. It was further stated in the written statement that the defendants filed an application for getting their names entered in the register maintained by the State of Bihar alongwith the plaintiff which was all owed by the B.D.O. Baharagora by an order dated 28th April, 1966. It is further stated that after the aforementioned order in Form M (Ext. G) was issued in the names of the plaintiff and the said defendants jointly, Rent receipts (A series) were also issued in their joint names.

The learned court below after taking into consideration of the pleadings of the parties framed the following issues:

Have the plaintiffs any cause of action for the suit?

Is the suit as framed maintainable?

Is the suit barred by law of limitation?

Is the suit barred by the provisions of section 35 of Bihar Land Reforms Act?

Whether the suit land forms part of the Ghatwali tenure of Naik Ghatwal of Ghat Gamaria?

Whether original plaintiff Haradhan was appointed as Naik Ghatwal of Ghat Gamaria after his father Baikunth Naik Ghatwal, and for rendering service to Govt. the suit land was given to him as alleged?

Whether the plaintiff Haradhan by virtue of the Ghatwali Sanad, had acquired right, title, interest and was in absolute possession of the suit land prior to his dispossession on the strength of the order passed in a proceeding U/S. 145 Cr.P.C. or whether it is joint ancestral lands of plaintiffs and defendants Nos. 1 to 4?

Whether the plaintiff Haradhan and defendants Nos. 1 to 4 were in joint possession of the suit land on the date of vesting of the tenure i.e. on 1.1.56 or it was in exclusive possession of the original plaintiff?

Whether subsisting right, title and interest over the suit land rest with the plaintiffs and whether they are entitled to recover possession after evicting the defendants therefrom?

Whether the plaintiffs are entitled to get a decree for declaration of title and recovery of possession with respect to the suit land against defendant No. 1 to 5 and

To what relief, if any, the plaintiffs are entitled?

In this appeal, Mr. Gopal Choudhary the learned counsel appearing on behalf of the appellants raised the following questions:--

(i) The plaintiff has not been able to prove the actual resumption of the land by the State giving to the plaintiff possession thereof pursuant to Ext. 7.

(ii) On the date when the Bihar Land Re forms Act came into force as the plaintiff failed to prove his exclusive possession and therefore, he did not derive any title and interest in terms of section 6 of the Act.

(iii) In any event as the original plaintiff died during the pendency of the suit the present appellants can not be said to have inherited any right, title and interest as a Ghatwali tenure is neither inheritable nor transferable in view of the findings of the learned court below itself.

Mrs. Roy learned counsel appearing on behalf of the respondents on the other hand submitted that the learned court below has come to the findings recorded by him in the impugned judgment after taking into consideration of the evidences on the record wherefrom it would appear that the plaintiff came in possession of the land pursuant to Ext. 7 and he also came in possession on 1.1.1956 when the Bihar Land Reforms Act came into force and thus became the statutory tenant under the said Act. Mrs. Roy further submitted that as Haradhan Naik became statutory tenant in terms of provisions of section 6 of the Act, the tenancy in question being a inheritable one the present respondents are also entitled to maintain the suit and the appeal and consequently the decree passed in their favour is absolutely legal and valid. It was further contended that the learned court below, has rightly placed reliance upon the Division Bench decision of this court in the case of Badri Narain Singh and Others Vs. Kamdeo Prasad Singh and Another, . In the said judgment this court has dealt with the scope, purport and effect of the grant of Ghatwali tenure. Before proceeding further the law in respect of the grant of Ghatwali tenure in the instance thereof may be noticed as laid down in the aforementioned judgment:

The incidents of the Brigham Ghatwali tenures were also recently examined by their Lordships of the Supreme Court in Tikait Hargobind Prasad Singh Vs. Srimatya Phaldani Kumari, . Their Lordships have observed as follows:

Its origin is now well known. In Moghul times grants of land were made to selected persons who were appointed guardians of the mountain passes for protecting the country side against hill invaders and the office held by these persons bore the designation ''Ghatwal''.

These grants were made in some cases directly by the ruling power and the in other cases by the Zamindar responsible by custom for the maintenance of security and order within the estate as consideration for the performance of the duties. By efflux of the time these grants assumed the form of an actual estate in land, heritable and perpetual but conditional upon services certain or services to be demanded....... The result of the decided cases and of the provisions of the regulation is that the grantee of the tenure and his descedants have to be maintained in possession of the land from generation to generation conditional up. on services to be rendered. The tenure is, however, liable to forfeiture for misconduct or misbehavior of the Ghatwal for the time being.

The succession to it is determined by the rule of lineal primogeniture. It is neither partible nor alienable (except in exceptional cases with the consent of the Government or the Zamindar, as the case may be). These two characteristics are inherent in its very nature and have not been annexed to it by rule of custom. The estate in the hands of the last holder is not liable either to attachment or sale in execution of decree against him; nor is it, liable in the hands of his successor for payment of his debts. When the succession opens out, the heir determined according to law has to execute a muchilika in favour of the grantor guaranteeing the performance of the duties annexed to the office and stipulating that in case of misconduct or misbehaviour or non-fulfilment of the obligations attaching to the office as to which the tenure is in the nature of a remuneration. Government will have the right to resume it.

The above character and incidents of Ghatwali tenures, about which there is no controversy now, show unmistakably that Ghatwals must be regarded as persons holding office of profit under the Government. The two main characteristics of the Ghatwali tenures are the creation of the office of Ghatwals for the performance of certain duties of police and military nature and grant of land for support and remuneration of a Ghatwal. These tenures are not transferable and also not heritable in the strict sense of the term. It is true that the tenures descend to one of the members of the same family generation after generation, but on the death of the last incumbent of the family, appointment of his successor has to be made by the Government.

The distinction between acquisition and resumption of Ghatwali tenures has to be kept in mind. The Government or the superior landlord is entitled in law to resume a Ghatwali tenure on the ground of incompetence and misconduct. The acquisition by the State of Ghatwali tenures under the said Act is not a resumption or forfeiture of these tenures. The resumption and forfeiture involve the abolition of the office and the removal of Ghatwal. The Bihar Land Reforms Act does not operate to abolish the Office and remove Ghatwals. It only takes over Ghatwal tenure on payment of the statutory compensation, leaving the office of Ghatwals intact. The Bihar Legislature has not enacted for the abolition of the office of Ghatwals. In T.M. Deo v. State. ILR 34 Pat. 57 at p. 92. Imam, C.J., with whom Jamuar, J. agreed, observed as follows:

The provisions of the Bihar Land Reforms Act, however, make no reference to the office of a Birbhum Ghatwal and it cannot reasonably be said that the State Legislature of Bihar legislated with reference to it. The provisions of the Act are entirely concerned with land and how it can be acquired by the State on payment of compensation. Its provisions may no doubt deprive the Ghatwal of his land, but it seems to me that its provisions can not be regarded as an unreasonable restriction on the duties of his office because in fact he has no duties to perform. Such duties as he had in the past are almost entirely, if not altogether, undertaken by the Government of the State of Bihar.

The office of Ghatwals, therefore, remains intact, no matter whether in the changed circumstances any duties pertain to that office or not.

Apart from this, the entire tenure has not, in substance, vanished. It is true that under S. 4 of the Bihar Land Reforms Act all the Ghatwal''s tenures have vested in the State. But, by virtue of the provisions of S. 6 of the said Act, there was a statutory lease back to the Ghatwals, of all the agricultural and horticultural lands which were in their khas cultivating possession on the date of the vesting. Therefore, notwithstanding the acquisition of the Ghatwali tenures, the Ghatwals continued to own and possess all the agricultural and horticultural lands which were in their khas cultivating possession prior to the date of vesting, though under a different title. These lands, therefore, still continue to be a part of the grant meant for the remuneration of the office of Ghatwals.

Then there is a further consideration. The amount of compensation payable under the Bihar Land Reforms Act is still available to the Ghatwals by way of remuneration for the performance of the duties enjoined upon them. I am fortified in this view by the observations of the Calcutta High Court in Ram Chunder Singh v. Mahomed Jowhuruzuma Khan, 23 Suth WR 376. In this case certain lands appertaining to Ghatwali tenure were acquired by the Government for railway purposes, and the compensation money was deposited in the Government treasury of Deoghar. The Ghatwal instituted the suit to recover the compensation money. Their Lordships of the Calcutta High Court disallowed his claim and observed as follows:

But the plaintiff is a Ghatwal. His title is not that of an absolute owner. He is only entitled to enjoy the profits of the Ghatwali mehal during his life without power of alienation. The compensation in deposit is only a money equivalent of a portion of that mehal. He can, therefore, only enjoy its interest without any right of spending any portion of it. He is bound to keep it intact as a part of the Ghatwalee property, so that his successors may obtain it, quite undiminished in value. This being the nature of his title, we ought not to declare his right to obtain this money, without imposing upon him certain conditions, for the purpose of preserving it in future as part of the assets of the Ghatwalee mehal.

This legal position has been approved by the Supreme Court in the case of Tikait Hargobind Prasad Singh Vs. Srimatya Phaldani Kumari, , referred to above (wronglys hown in the report as Ram Narain Singh v. Ramoon, 23 Suth WR 76). It is manifest, therefore, that notwithstanding the acquisition of Ghatwali tenures by the State under the Land Reforms Act, the compensation money payable under the Act still constitutes the corpus of the Ghatwali which would devolve on the next heir intact, and the incumbent for the time being is entitled to the interest accruing due from time to time on the compensation money and cannot spend it as he likes to the detriment of his successor. It is, however, for the appropriate authority to provide against unwarranted usurpation of the compensation money by the present Ghatwals. The fact remains that the Ghatwali tenures have not been entirely wiped out by the operation of the Land Reforms Act. The position that emerges is that the corpus of Ghatwal tenures does not extinquish the grant altogether. The grant still subsists, though in an altered form. When the amount of compensation money and the culturable lands comprised in the Ghatwali tenures are still available and when the discharge of the obligations has not thus been rendered wholly unremunerative, it is impossible to maintain with any show of reason that both the office of the Ghatwals and the grant of land for support thereof have been wholly obliterated in consequence of the acquisition of tenures by the State. The inevitable conclusion is that both the office and the grant still subsist, though in another form.

In this connection reference may be made to a judgment of another Division Bench decision of this Court in the case of Maharaja Pratap Singh Bahadur v. Thakur Manmohan Deo (1961 B.L.J.R. 154) wherein this Court held as follows:

The office of Ghatwali is hereditary in a very limited sense, namely, in the sense that the eldest heir in the family of the last incumbent of the office has a right to be appointed in the vacancy caused by his death or otherwise so long as he is willing and competent to discharge the obligations attached to the office. The right to hold the office and consequently the tenure accrues to a descendant after the office falls vacant by death or otherwise of the last incumbent. No member of his family can acquire by birth any interest in Ghatwali because the property does not pass to any one who does not fill the office. Though a Ghatwal may in point of time be said to be successor to his predecessor-in-office but his title to the office is not through him and subject to any law of limitation is open to him to challenge the dispositions made by his predecessor.

A ghatwali property being attached to the office, every Ghatwali, in the absence of any specific grant, custom, usage or enactment to the contrary, is entitled to enjoy its income and that too only so long as be is in office but has no propriety title in the corpus. No ghatwal has a right to alienate any part of it in such a way as not to be available after tenure of office to his successor. The lease therefore of 1873 granted in contravention of secs. 1 and 2 of Act 5 of 1859 was binding only on the grantor and that too so long as he was in office and not on his successor. Hence the action brought by the present holder of the office of Ghatwal challenging the disposition made by his predecessor in-office and for recovery of possession within the period of limitation, namely, within three years from the date of his attaining majority is neither barred by time nor is hit by the rule of adverse possession. In the case of a claim for a property attached to an office it presupposes that the claimant is in office and his right to that office is still alive and has not been either lost or extinguished. Ghatwali property is not separate from the office to which it is attached and it passes by inheritances to no one who does not fill the office.

It has been hereinbefore that in view of the defence taken by the defendants in the written statement was that Baikunth Naik remained in possession although he was instrumental in obtaining the grant in favour of Hardhan Naik. From the decisions aforementioned it is absolutely clear that whether before or after the death of Baikunth Naik, Hardhan Naik became Ghatwal and in any event he was bound to be appointed as Ghatwal. The defendants cannot claim title adverse to the original plaintiff only because they were allegedly in possession of the properties alongwith the original plaintiff.

From a perusal of the principles of law as propounded in the aforementioned decisions it is clear that the defendants cannot in any circumstances inherit the property in respect of the said Ghatwali Tenure from Baikunth Naik. In this view of the matter it must be held that the sanad (Ext. 7) granted in favour of Hardhan Naik was perfectly valid and legal. Consequently it has also to be held that the plaintiff came in exclusive possession thereof on the basis of the said Sanad. There can not be any doubt that the defendants having been claiming the possession alongwith the plaintiffs, even assuming their cases to be correct, the said possession must be held to be permissible in nature. The possession of the defendants through Baikunth Naik alongwith Hardhan Naik cannot be said to be a legal possession as in view of the law in respect of Ghatwali Tenures, they have no right to possess the said land. Similarly it must be held that the possession of the plaintiffs would be present to continue even on the day when the Bihar Land Reforms Act came into force, in as much as even assuming that the defendants were in possession of the land alongwith the plaintiffs on that day; the property belonging to the plaintiffs was proved in terms of section 6 of the said Act, so far as the interest of the plaintiffs alone is concerned. As the defendants, admittedly, were not rightful owners in respect of the properties in question by virtue of their alleged possession, even assuming that they were in possession along with the plaintiff cannot cloth themselves with any right, title and interest in respect of the properties in question, by reason of the provisions contained in section 6 of the Bihar Land Reforms Act or otherwise.

The third question raised by Shri Gopal Chaudhary learned counsel appearing on behalf of the appellants has also no substance.

After coming into force of the Bihar Land Reforms Act, Hardhan Naik became an occupancy raiyat, by virtue of a legal fiction. In the case of East End Dwelling Co. Ltd. v. Finsbury Borough Council (192 A.C. 109) Lord Asquith held as follows:

If you are bidden to treat an imaginary state of "affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it...........The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.

The aforementioned decision has been followed in India in various cases including the Supreme Court of India in the cases of The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, , Commissioner of Income Tax, Delhi Vs. S. Teja Singh, and The Additional Income Tax Officer, Salem Vs. E. Alfred, .

In this view of the matter if Hardhan Naik became the occupancy raiyat under the State of Bihar in terms of the legal fiction created in his favour by reason of section 6 of the Bihar Land Reforms Act, the provisions of section 6 of the Act shall operate and the property in question shall become inheritable and transferable in terms of the Chotanagpur Tenancy Act.

This view of mine also finds support from the decisions mentioned hereinbefore as also the decision in the case of Thakur Manmohan Deo and Another Vs. The State of Bihar and Others, . In that view of the matter I do not find any merit in this appeal which is dismissed. However, in the facts and circumstances of the case, parties shall bear their own costs.