Raghunandan Singh and Others vs Sri Radhakrishna Thakurji and Another

Wort, J.—This appeal by the plaintiffs arises out of an action claiming a declaration that they possessed certain raiyati interest in certain lands measuring some 101 bighas of which 14 bighas were paddy lands, the remainder being kharhur lands, and for possession and mesne profits. The plaintiffs'' case was that they had been dispossessed by the defendants landlords in the year 1332. The defence to the action was that the lands were zeraifc lands and consequently no occupancy rights could accrue therein.

The learned Subordinate Judge decided the case in favour of the defendants, holding that the lands were zerait lands, and his judgment is mainly based upon an alleged admission in the kabuliyat dated 14th August 1914.

The plaintiffs connexion with the land dates as far back as the year 1870 when under a thica the plaintiffs'' father had an eight annas interest. The thica was dated 20th November 1870 and was for five years from the year 1278 to 1282 Fasli.

The plaintiffs, however, base their claim upon possession which commenced on 14th January 1896 under a kabuliyat of that date (Ex. 1) for the years 1303 to 1311. After that settlement came to an end, a further kabuliyat was executed on 22nd August 1904, (Ex. 1-a) for a period of eight years. That took them up to the year 1320 F.S. For the year 1321 there was no settlement, but on 14th August 1914 there was a further settlement for nine years at an annual rental of Rs. 520 and this took them up to the year 1330 F.S. Now the plaintiffs'' contention was that after the settlement of the 22nd August 1904 came to an end, they held over for the year 1921 and also after 1331 till, as I have already stated, they were dispossessed in 1332 F.S. The defendants'' contention, however, is that during the years which I have mentioned they came into khas possession. No particular point arises upon this contention now as the only question which could have arisen was the question of limitation and that point is not now pressed by Mr. Pugh appearing on behalf of the respondents. The learned Subordinate Judge relied mainly upon the alleged admission of the plaintiffs in the kabuliyat of the 14th August 1914 in coming to his decision that these were zerait landa, In that document the lands were described as:

101 bighas khudkasht which has been measured 75-13 acres in the survey khatian against khatas Nos. 56 and 148.

There is a farther statement in the kabuliyat that these kharhur lands were in the khas possession of Sri Thakurji. There are various other provisions in the deed to which reference will presently be made.

A number of sections of the Bengal Tenancy Act have been referred to, the most important of which are Section 116, Section 120 and Section 178 of the Act. Section 116 provides:

Nothing in Chap. 5 "shall confer a right of occupancy in, and nothing in Chap. 6 shall apply to lands acquired under the Land Acquisition Act, 1894...or to a proprietor''s private lands known in Bengal as khamar, nij, or nijjote, and in Bihar as zirat, nij, sir or kamat.

Section 120 makes provision that:

A Revenue Officer shall record as a proprietor''s private land (a) land which is proved to have been cultivated as khamar, zirat, sir, nij, nijjote or khamat by the proprietor himselfi with his own stock or by his own servants

and then Sub-clause (b) says:

land which is recognized by village usage as proprietor''s khamar, zirat, sir, nij, nijjote or kamat

and Sub-section (2):

in determining whether any other land ought to be recorded as the proprietor''s private land, the officer shall have regard to local custom, and to the question whether the land was, before 2nd March 1883, specifically let as proprietor''s private land, and to any other evidence that may be produced; but shall presume that land is not a proprietor''s private land until the contrary is shown.

We therefore start with a presumption-against the defendants in this case that these were not zirat lands. Then Sub-section 2(a) is material, although the arguments based thereon are not now seriously pressed. It provides:

Notwithstanding anything contained in any agreement or compromise, or in any decree which is proved to his satisfaction to have been obtained by collusion of fraud, a revenue officer shall not record any land as a proprietor''s private land, unless it is proved to be such by satisfactory evidence of the nature-described in Sub-section (1), Sub-section (2),

and then Sub-section (3) says :

If any question arises in a civil Court as to whether land is or is not a proprietor''s private land, the Court shall have regard to the rules laid down in this section for the guidance, of revenue officers.

There is no doubt that the learned Subordinate Judge was right in considering the statement contained in the kabuliyat dated 14th August 1914 as it is now quite clearly established by a decision of the Privy Council in Bindeshwari Prasad Singh v. Kesho Prasad Singh AIR 1926 P.C. 79 that an admission in a document of this character is evidence which will be considered for the purpose of determining the question. There was a discussion in that case as to the meaning of the expression "any agreement or compromise" in Sub-section 2(a), Section 120, Ben. Ten. Act; and in the course of the opinion delivered by Sir John Edge he states:

Any agreement or compromise in 2 (a) must refer only to an agreement or compromise of a question in discussion as to the character of the land at the time when the agreement or compromise was made.

There is no question in this case that there was any such dispute or that the matter was under discussion and therefore it is abundantly clear that the learned Subordinate Judge was right in admitting that statement in the kabuliyat of 1914, for what it is worth.

Two questions would arise with regard to this kabuliyat. 1 might say here that it is the settlement upon which the appellants in this case more particularly rely. The first question is that assuming that the lands are not zirat, whether the plaintiffs could acquire by reason of it occupancy rights in the lands, the subject matter of the settlement. Section 5 Sub-section (2), Ben. Ten. Act, defines "raiyat" as:

primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants.

A greater part of these lands, the subject matter of this settlement, produces kharhur or grass for thatching purpose. But there were, as I have said, 14 bighas [Of paddy lands. Towards the end of the document there is this provision;

I and my heirs and representatives neither have nor shall have any sort of interest in the said land save and except to get the produce, to cultivate the land, to pay the rent. I shall not change the features and status of the land, nor shall I take recourse to any illegal act or interfere in any matter with regard to the land.

It was faintly argued by Mr. Pugh that there was to be a distinction drawn so far as this settlement is concerned as between the kharhur lands and the paddy lands. But whereas it must be admitted that the plaintiffs were persons who had acquired a right to hold the lands for the purpose of cultivating it so far as the paddy lands are concerned, the same could not be said with regard to the greater part of the lands which merely produces thatching grass. As I have said, this argument was not seriously pressed at the end. It must be held, it seems to me, on the clause to which I have just referred that the plaintiffs were persons who had a right to hold the lands under this settlement for the purpose of cultivation, unless it could be shown that there was to be drawn any distinction between grass growing lands and paddy lands. Indeed even so far as the kharhur land was concerned the case of this grass includes certain processes which must be considered a? a form of cultivation. It therefore seems to me that all other circumstances being in their favour the plaintiffs had a right to become raiyats of these lands under this kabuliyat.

The other point, and the main point which is pressed in this case, is the value of the admission by the plaintiffs or the admission contained in that part of the document which describes these lands as khudkasht. In the first place, so far as the circumstances under which the> document was executed are concerned, Mr. Pagh argues that this document was entered into not by an ignorant raiyat, but was admittedly entered into by the plaintiff who at any rate as gomashta would be in a position to know exactly what the character of these lands was. But that seems to ma to be an argument which cuts both ways. If the plaintiff was a gomashta (and this is not denied) he was in the position of a servant and therefore not as free to contract as a. person entirely independent of the defendants. But the important point is what is the meaning of the alleged admission that the lands are khudkasht. Mr. Pagh naturally relies upon the judgment of the case before the Judicial Committee of Dhakeshwar Prasad Narain Singh v. Gulab Kuer AIR 1926 P.C. 60. There Mr. Ameer Ali in delivering opinion stated:

The term bakasht, invented by the revenue officers to meet a certain contingency, conveys to all intents and purposes the same meaning as khudkasht, which is admittedly the same as sir or zirait. It might, however, imply raiyatr lands that had temporarily come into the possession of the landlord and were temporarily under his cultivation.

Bat for a moment considering the-first statement in this judgment apart from the later statement" this has been dealt with by the late Chief Justice of this Court in the case of Hira Lal Singh and Others Vs. Matukdhari Singh and Others, . The learned Chief Justice states:

The meaning attributed in that passage to the word khudkasht is apprently based upon an admission by the parties in that suit, But with that we are not immediately coucerned in this appeal. The meaning attributed to the word bakaght must also I presume be based upon the evidence in the case, or upon an admission, for it is at variance with the meaning assigned to it by the staff of the Settlement Officer himself in the Guide and Glossary attached to the report of the Survey and Settlement Operations in the Patna and Bhagalpur Divisions,

The learned Chief Justice adds:

and a finding of fact based upon the evidence...cannot have bean intended to be binding in all future cases whatever the evidence.

The passage in the judgment before the Judicial Committee treats the words khudkast and bakasht as synonymous. The learned Chief Justice in the course of his judgment to which I have just referred, refers to the Glossary and Guide attached to the report, In the remarks column of p. 16 of this Glossary against the word "bakasht" is this statement:

Entered in the status column of khatians in which details are recorded of those lands held directly by the malik or tenure-holder which are not "zirait" land as defined in Section 120.

The most that can be said therefore is that the use of the word in this kabuliyat was equivocal, and the moment one comes to this conclusion it seems to me that the value of the admission if such there were, entirely ceases. If that be so, we shall have to look to other evidence in the case on which the learned Subordinate Judge, came to the conclusion he did. Mr. Pugh relies upon the evidence of Behkha Singh (witness 3 for the defendant) who states that he saw this kharhar land for the first time in the year 1278. It was in khas possession of the maliks. At that time he was 10 or 12 years of age. He saw ploughing of the land on behalf of the malik and cutting of the khar. Malik''s amla was Budraj at that time. Then he states that because he saw Budraj, therefore he gathered that the land was zirat of the malik. It seems that no Court would be justified in relying upon such evidence in coming to the conclusion that at the time the witness spoke the land was zirat land. Although the onus was, as I have stated, upon the defendants in this case to establish the faet that the land was zirat, Mr. Sushil Madhab Mullick in arguing the appeal on behalf of the appellants relies upon certain documents to show that the land was raiyati laad.

The first document upon which he relied was kaifiat (report) with regard to partition and division of the jama and land of village Samartha, dated 7th May 1853 (Ex. G). This document was used for the purpose of showing that in the year 1853 the land was rent paying and that partition took place of the land in that year. One important fact is to be noted that the lands which are admittedly the subject matter of this action were described as kharhar lands, held by the proprietors, whereas other lands in the mauza were specifically described as zirat. Mr. S.M. Mullick relies upon the document (Ex. F). It is a very valuable piece of evidence to show that the parties knew by reason of this distinction that these lands at any rate were not zirat lands of the maliks. Ex. 3 (a) is another document upon which Mr. Mullick relies, these being rant receipts showing that the lands were let out to tenants in August 1868. Other documents such as Ex. 16 prove the arrear list of mauza Samartha for 1881-82. We then come to Ex. 1 which is the kabuliyat upon which the plaintiffs rely the kabulyat of 1896 and again Ex. 1 (a) the kabuliyat of 1904, and Mr. S.M. Mullick''s argument on these documents is that there was no suggestion in either of these documents that these were the private or zirat lands of the maliks. There was a contention of Mr. Pugh that as any rate so far as some years were concerned the possession by the plaintiffs was merely possession by the plaintiffs as gomashta of the defendants. Mr. Mullick however refers to account books (Exs 6 to 6-k) on which he argues that the plaintiffs realized their profits on their own behalf and not as gomashta of the defendants. We come to the extracts from the jamaakharach account of 1923-24 and also to a letter from Samkhelawan Singh to Raghunandan Singh dated 6th February 1924 which according to the argument advanced indicate that the plaintiffs were in possession in the year 1331. As I have already stated no point arises on that question now and no further reference need be made to it.

The other important document which is relied upon by the appellants is the batwara khesra of muaza Samartha to which I have already made reference. Now Mr. Pugh in arguing the case on behalf of the defendants as I have already indicated relied upon the admission in the kabuliyat of 1914 and also upon other documentary evidence in the case. He first contends that for ten years at any rate from 1883 he was in khas possession of these lands. It seems to me that this argument is quite irrelevant for the purpose of his case, because unless it was established that the lands were zirat defendants'' possession of them for ten years would be of no avail and even if they had been in possession for 12 years there is no evidence that this was cultivating possession of the zirat lands as such. Clause (a), Sub-section (1), Section 120, Bengal Tenancy Act provides:

land which is proved to have been cultivated as khamar, zirafc, sir, nij, nijjote or kamafc,

There is no evidence that the lands were cultivated for that period as zirat lands and therefore that argument does not assist the ''defendants in the case. Another argument put forward by Mr. Pugh was that judged by the conduct of the plaintiffs together with the admission and documentary evidence in the case, we ought to come to the conclusion that the lands were zirat. He refers more particularly to the thica of 1870 and states in the first place that it is to be noticed that the plaintiffs have not relied in the action upon this thica lease to give them a raiyati interest in the lands. The answer given by Mr Mullick on behalf of the plaintiffs was that; at that time the law was such (under Act 10 of 1859 and Act 7 of 1869) that no raiyati interest could have been acquired. I do not think any inference as to the character of the land in suit can be drawn from the conduct of the plaintiffs. In any event assuming that the law was the same as at present it does not seem to me that the conduct of the plaintiffs being of such an equivocal nature would entitle a Court to rely upon it as showing that in the estimation of the plaintiffs the lands were raiyati lands. In my judgment in this case the most the documentary evidence shows in support of the defendants case'' is the fact, namely that from time to-time the defendants were in direct possession of the lands. But this is consistent with the fact that these lands were raiyati as well as that they were zirat. Now that being the position the only conclusion which can be arrived at is that there was no evidence that the lands were zirat lands of the proprietor and that being so the plaintiffs were entitled to succeed in the> case.

The appeal will therefore be allowed, the decree of the learned Subordinate; Judge will be set aside and the plaintiffs will be entitled to a decree in the form of the relief claimed in the plaint that is to say to a declaration that the plaintiffs had the raiyati interest in the lands and are entitled to recover possession and mesne profits thereof. The mesne profits will be ascertained by the Subordinate Judge in the Court below. The appeal therefore is allowed with costs throughout.

Ross, J.

I agree.