Ramkhelawan Sahu and Another vs Kuldip Sahay and Others

Ross, J.—This is an appeal from a decision of the learned Subordinate Judge of Arrah affirming a decision of the Munsif granting a decree to the plaintiff in a suit (so far as is now material) for a declaration that they have a right of way from their garden, Plot No. 254 of Khata No. 45 to the Local Board road in village Rajokher over Plot No. 245 belonging to Defendants 1 and 2 which intervenes between the garden and the road.

Defendant 7 is the landlord and he did not contest the suit. Defendants 1 and 2 who did contest the suit had taken settlement of Plot No. 245 from Defendant 7 in 1918. The suit was brought in 1920.

The main contention on behalf of the Appellants-Defendants 1 and 2 is that the Courts below have erred in holding that the plaintiff have acquired this right of way by prescription, because they are tenants of Defendants 7 and could neither prescribe against their landlord nor against Defendants 1 and 2 who are tenants under the landlord. It is contended that for two years before the suit Plot No. 245 was in settlement from the landlord and before that it was parti and that consequently the plaintiff must have prescribed against their landlord and his tenants and that this is impossible in law. The argument rests on the fact that in the record of rights the plaintiffs are recorded in the khatian, and it is argued that, therefore, they must be tenants of the landlord. The record of rights shows that the plaintiff''s ancestor purchased the land in 1894 and that the land is kharij jama. The Munsif took the view that this meant that the land was excluded and not settled with the zamindar at the time of Permanent Settlement and that the title of the plaintiffs was, therefore, independent of that of the zamindar of the village. The learned advocate of the appellants referred to Section 3, Clause (3) of the Bengal Tenancy Act where "tenant" is defined as "a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person." Reference was also made to Gokul Sahu v. Jodu Nundun Roy (1890)17 Cal 721, where it was held that a rent free brahmotar sanad operated as a special contract but for which the brahmotardars would be liable to pay rent and that the brahmotardars were tenants within the meaning of the Act. Now while it is quite clear that the mere fact that no rent is paid does not necessarily mean that the plaintiffs are not tenants of the landlord and while the fact that they are entered in the khatian to some extent supports the argument of the appellants, yet the case really turns on the effect of the entry "kharij jama." In Wilson''s Glossary "kharij jama" is translated as meaning "separated or detached from the rental of the state as lands exempt from rent or of which the revenue has been assigned to individuals or institutions." In N. James'' Settlement Report of Patna "kharij jama" is defined as "land allowed free to zamindars as reward for some special service, by a Provincial Governor, and so to be distinguished from altamga grants." Prima facie, in my opinion, the word imports that the owner of the kharij jama land is an independent proprietor. The land has been included within the zamindari of Defendant 7, but it has evidently never been resumed and could not now be resumed and consequently the relation of landlord and tenant does not exist between the parties. In his judgment the learned Subordinate Judge has merely referred to the finding of the Munsif on this point and has not discussed the matter further evidently as appears from a later passage in the judgment, because it was not argued be fore him. I sea no convincing ground for holding that the Munsif was wrong in deciding that the plaintiffs had a title independent of the zamindar with regard to this land. This view also finds some support from the consideration that the landlord did not contest the case.

It was also argued that the plaintiff''s had not proved that they used this path as of right and that there is no evidence of this. The learned Munsif went into this part of the case fully and came to the conclusion from the nature of the user that the enjoyment had been as of right. The learned Subordinate Judge disbelieved the evidence that was given by the defendants that the user had been with the permission of the landlord and found that the evidence of the plaintiffs'' witnesses proved that the user of the passage by the plaintiffs was as of right. This was an inference which it was open to the Courts below to draw and I see no reason to doubt the correctness of their finding.

The appeal is dismissed with costs.