Rajanath Singh and others vs Wahid Khan and others

Adami, J.—The facts which are necessary for the purpose of the decision of this second appeal are, that the plaintiffs and defendants were co-sharer landlords in village Loharpura, and in the year 1912 there was a partition whereby they received separate takhtas, the lands in dispute are in the plaintiffs'' takhta, but the defendants claim to have a raiyati right in them and refuse to give up possession.

In 1881 the defendants, who, it is found, had before that no connection with the lands, obtained a thicca lease from the proprietors for the period of nine years. In 1890 when the thicca ceased, they obtained a proprietary share in the village, and later on in 1898 the plaintiffs also obtained a proprietary share. The lower appellate Court has found that prior to their thicca the defendants had no connection with the lands.

It has looked into the evidence before the Court regarding the question whether the defendants cultivated the land as raiyats, and has found that they did not do so, but cultivated it as maliks. On these findings of fact, it seems quite clear that the defendants-appellants are concluded from succeeding in this appeal.

It has been argued before us that if in fact the defendants cultivated these lands during their thicca and while they were proprietors previous to 1912, they held a raiyati interest even though it was only a non-occupancy right. It is clear, I think, from the provisions of Ss. 20 and 39 of the Chota Nagpur Tenancy Act that on the findings this contention cannot prevail.

It is also contended that this Court should call for the record-of-rights and find out how the lands are recorded therein. The record-of-rights was finally published after the Munsiff had given his decision in the suit, but before this appeal came on for hearing before the lower appellate Court, the plaintiffs asked that it should be produced, but the lower appellate Court found that it was unnecessary to bring it into evidence at that stage.

I see no reason why under the circumstances this Court should be required to decide the case according to the entry, whatever it is, in the record-of-rights, considering that the suit was instituted and the decision given by the Munsiff before the final publication.

An attempt has been made to show that the entry in the record-of-rights is conclusive under the Chota Nagpur Tenancy Act, but the provisions of S. 132 relate only to khuntkati lands and in the present suit the provision, of S. 84, sub-S. (3) would apply. Under the circumstances I cannot find any reason for differing from the findings of the learned Judicial Commissioner as they are findings of fact and would dismiss the appeal with costs.

Bucknill J:-

I agree.