Rampratap Marwari vs Lachman Mistry

Fazl Ali, J>

It seems to me that both the Courts below have missed the real point which arises in this case. What that point is will appear from the following brief statement of the facts which have given rise to this appeal. The appellant has obtained a money decree against the respondent, and he seeks to attach and sell the interest of the respondent in certain property.

The property in question consists of survey plot No. 3 and portions of plots Nos. 4 and 6 with a house standing on them. These plots are entered in the raiyati khatian in the names of Purusottam Mahto and Madhu Mahto who are admittedly settled raiyats.

In the year 1904, one Rajani Kanta Banerji took settlement of some homestead lands including the lands in question from the father of Purusottam Mahto and Madhu Mahto by a patta (EX. C) for the purpose of building houses upon them. During the survey and settlement operations Rajani Kanta Banerji was entered as under-raiyat with occupancy rights under the settled raiyats. The appellant afterwards took oral settlement of the disputed lands from Rajani Kanta Banerji and constructed a house on them. It is stated by the Munsif in his judgment that the respondent-judgment-debtor had taken settlement from Rajani Kanta Banerji for purely residential purposes, and from his previous deposition in the money suit, it appears that he has built a pakka house on it and shops are held in that house. The question which arose in the Courts below was whether the house or shop and the interest which the respondent has in the disputed land are liable to be sold in execution of the money decree. What was contended on behalf of the judgment-debtor in the Courts below was that this property was not liable to be sold under the provisions of Sections 46 and 47, Chota Nagpur Tenancy Act.

Section 46 imposes restriction on the transfer of their rights by raiyats, and Section 47 provides that:

No decree or order shall be passed by any Court for the sale of the right of a raiyat in his holding or any portion thereof, nor shall any such right be sold in execution of any decree or order.

Now, for the purpose of deciding this case, both the Courts below seem to have assumed that the respondent has acquired the same status as Rajani Kanta, and they have entered into an elaborate discussion as to the status of Rajani Kanta. The Munsif held that Rajani Kanta was not a raiyat inasmuch as the lease, which he took from the original raiyats of the disputed land, was for building purposes. On this view, he has held that the respondent also has no raiyati interest in the disputed land and his interest is liable to be sold in execution of the decree.

The learned Subordinate Judge, who heard the appeal from the judgment of the Munsif, has taken a contrary view. In his opinion Rajani Kanta was a raiyat, and he has come to the conclusion that though the Chota Nagpur Tenancy Act was passed in 1908, Sections 46 and 47 of the Act show that those provisions of the Act were intended to have retrospective effect as regards transactions before 1903. He points out that as Rajani Kanta obtained his lease after 1903, Sections 46 and 47 are applicable to his interest. He has tried to show that Rajani Kanta was an agriculturist, and he has also referred to Section 78, Chota Nagpur Tenancy Act, for the purpose of showing that the interest of Rajani Kanta cannot be proceeded against under Sections 46 and 47, Chota Nagpur Tenancy Act.

Now, the point which, in my opinion, arises in this case is not what status Rajani Kanta had in the disputed lands but what status (she judgment-debtor has in regard to this land. It is common ground that Rajani Kanta had taken his lease for building purposes, and it has been pointed out to us that he has been alienating portions of the land covered by his lease from time to time.

These facts prima facie seem to support the conclusion arrived at by the Munsif that Rajani Kanta cannot be said to be a raiyat; but as I have already stated, the point to be decided in this appeal is whether the respondent is protected by Sections 46 and 47, Chota Nagpur Tenancy Act. Now, even a casual reading of these sections will show that they are intended to protect the rights of a raiyat only. The first question to be considered, therefore, is whether the respondent is a raiyat. Section 6, Chota Nagpur Tenancy Act, states that:

A "raiyat" means 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, or with the aid of partners ; and includes the successors-in-interest of persons who have acquired such a right, but does not include a Mundari khunt-kattidar.

This definition seems to be wide enough to include an under, raiyat; but Clause (2) of Section 6 makes the position clear. It is stated in that clause that a person shall not be deemed to be a raiyat, unless he holds land either immediately under a proprietor or immediately under a tenure-holder or immediately under a Mundari khunt-kattidar. As the respondent does not claim to hold the land under a proprietor or a tenure-holder or a Mundari khunt-kattidar, he cannot be held to be a raiyat in the sense in which the expression has been used in the Chota Nagpur Tenancy Act.

It is argued that he is at least an under-raiyat and that an under, raiyat, also must be regarded as a raiyat. But a reference to Section 4 of the Act shows that though an under, raiyat may be a tenant he is not raiyat. There are only three classes of raiyats mentioned in this section, and these are occupancy raiyats, non-occupancy raiyats and raiyats having khuntkatti rights. Under-raiyats, on the other hand, are described as tenants holding whether immediate or mediately, under raiyats. Therefore, whether the respondent be an under-raiyat or not, he is not a raiyat, and therefore, he cannot claim the benefit of either Section 46 or Section 47, Chota Nagpur Tenancy Act.

It was contended on behalf of the respondent that even though he may not be a raiyat, yet inasmuch as the appellant is seeking to sell portions of a holding, he is entitled to object to the sale on the ground that the Court cannot sell what it is expressly forbidden to sell u/s 47, Chota Nagpur Tenancy Act; but in my opinion, this is not the correct way of approaching the case. The appellant is not trying to sell the occupancy right in the lands. He is merely trying to sell the shop or house and such right, title and interest as the respondent has in the land in question. I do not see how such interest can be said to be protected u/s 47.

It was also contended on behalf of the respondent that the interest of the respondent cannot be sold u/s 60, Civil P.C. It was urged that the respondent not being a raiyat can be ejected from the land by his landlord at any moment, and that Section 60 does not contemplate that such a precarious right as the respondent has in the land is capable of being sold.

I do not, however, find anything in Section 60 to prevent the sale of the respondent''s interest in the land in dispute. The shop or house which has been erected by the respondent certainly belongs to him, and he has undoubtedly a disposing power over the profits of the land which he may exercise for his own benefit.

The case, therefore, comes within the category of those properties which can be sold under the provisions of Section 60, Civil P.C.

In my opinion, the learned District Judge was wrong in holding that the interest of the judgment-debtor-respondent cannot be sold, and I would, therefore, allow this appeal, set aside the order of the learned District Judge and restore the order of the Munsif. The appellant will be entitled to his costs in this Court and in the Courts below.

Harries C.J.

I agree.