Raghunath Misra and others vs Ram Behera and others

Das, J.—This appeal arises out of a suit instituted by the plaintiffs for ejectment of the defendants from 4,582 acres of land in Khurda. The plaintiffs describe themselves as rafa-tankidars and it is their case that the defendants are skikmi raiyats, that is to say, under-raiyats. The Provincial Settlement records the plaintiffs as rafa-tankidars but the Revisional Settlement describes them as tankidars and the defendants as having rights of occupancy in the land in dispute.

The learned Judge has come to the conclusion that the entry in the Revisional Settlement record must be presumed to be correct until it is shown to be incorrect, and his view is that the Provincial Settlement is by itself insufficient to rebut the presumption that the Revisional Settlement record is correct. Now in my opinion this is not a very correct way of stating the position. As was held in the case of Sheonandan Prasad v. Backa Raut (1909) 9 C.L.J. 284=4 I. C. 54, evidence of facts, documentary and oral, of a date prior to that of the publication of the Record-of Rights is admissible and should be taken into consideration in determining whether the presumption, under S. 103-B of the Bengal Tenancy Act, as amended, has been rebutted or not.

Now, as I understand the position, in the year 1839 the Government agreed to a compromise with tankidars or holders of land on quit-rent to the effect that on condition of their agreeing to pay rent at certain rates fixed by Government no enquiries would be made into the liability of their holding on resumption. I understand that the quit rates so fixed were termed rafki or terms at fixed rates and the holders of the land were known as rafa-tankidars.

If in fact the plaintiffs were rafa-tankidars at the time of the Provincial Settlement there is no procedure by which they became tankidars at the time of the Revisional Settlement. The Provincial Settlement records he considered of very high value in determining the status of tenants and in my opinion the Provincial Settlement record is sufficient to rebut the resumption of correctness that must attach to the Revisional Settlement records in this case because it is conceded that there is no oral evidence in the case on the point.

The next question is, if the position of the plaintiffs be that of rafa-tankidars, are they entitled to eject the defendants? The learned Judge in the Court below says that Mr. Taylor''s opinion on the point is not entitled to much weight. There is, however, a decision of this Court in the case of Harayan Patnaik v. Raghunath Patnaik (1920) 5 P.L.J. 373=57 I.C. 225, which concludes the matter. That decision is in favour of the appellants.

It decided that rafa tankidars raiyats are occupancy raiyats and not tenure-holders. If that be so they are entitled to eject the defendants unless it be that the defendants have acquired certain rights by custom. The learned Judge says that u/s 237 of the Orissa Tenancy Act, "under-raiyats can acquire occupancy rights by custom."

With all respect I am unable to agree with this view. Section 237 provides "Nothing in this Act shall affect any custom, usage or customary right not inconsistent with, or not expressly or by necessary implication modified or abolished by its provisions."

I can quite understand an under-raiyat acquiring by custom certain privileges which are possessed by occupancy tenants but it is one thing to say that a person May by custom acquire rights which are incidents to rights of occupancy in land but it is quite another thing to say that by custom an under-raiyat may become a raiyat. There would, in my opinion, be a contradiction in terms if the view of the learned Judge in the Court below be accepted. It may of course be that the defendants by custom may acquire certain privileges of occupancy tenants and it may be that one of these privileges is that he is not entitled to be ejected merely on notice u/s 57 of the Orissa Tenancy Act.

But no custon has been alleged in the written statement and none could have been investigated by the learned Judge in the Court below. His view is that as they are recorded in the Record-of-Rights as occupancy tenants it must be held that they have acquired those right by custom; but I hold that the defendants could not by custom acquire the status of occupancy tenants. That being so, if they did rely upon any custom as a bar to the plaintiffs suit, it was for them to allege and prove that custom.

I must allow the appeal, set aside the judgment and decree of the Court below and give the plaintiffs a decree for possession. The appellants are entitled, to their costs of this appeal.

Adami, J.

I agree.