Satyendra Narayan and Others vs Shyamsunder Singh and Others

Das, J.—In this suit the plaintiffs claim to recover khas possession of certain specific plots of land. The defendants are recorded as tenure-holders and the plaintiffs claim that in the events which have happened they are now entitled to recover khas possession of those lands.

It is not disputed that the predecessors-in-title of the plaintiffs executed two successive leases in favour of Raja Ram, the predeceesor-in-title of the defendants first party. The earlier of the leases began in 1802 and was from 1302 to 1311. The latter of the leases was from 1315 to 1321. The plaintiffs as landlords are entitled to recover possession of these lands unless the defendants have established some title to the same. Now the defendants contend that they are occupancy raiyats and the plaintiffs are not entitled to recover khas possession Of the lands. The plaintiffs say, in the first place, that the lands are the proprietor''s private lands and that, therefore, no right of occupancy can be acquired in those lands. In the second place they contend that the defendants are mere tenure-holders and as their lease has expired, they must make over possession to them. Both these points have been decided against the plaintiffs by both the Courts below. In my opinion the decisions of the Courts below are erroneous and ought to be set aside.

I will first consider the question whether the disputed lands are the proprietor''s private lands. Now, the lower Appellate Court has proceeded upon the view that "Recitals in deeds executed subsequently to the 1st March, 1883, are rendered inadmissible in evidence by Section 120, Clause (2)(a) of the Bengal Tenancy Act, and the word ''khudkasht'' does not conclusively connote proprietor''s private lands."

The latter part of the proposition may be Correct, but it is no longer open to doubt that the view of the Courts below as expressed in the first sentence quoted above is incorrect. The Judicial Committee of the Privy Council has now held that recitals in deeds executed subsequently to the 1st March, 1883, are relevant evidence and have to be taken into consideration by the Courts in coming to the conclusion whether lands are proprietor''s private lands or not. It appears that in this case there are recitals in the leases going to show that the disputed lands are the proprietor''s private lands. The Courts below refused to consider the evidence as furnished by the recitals as, in their view, they were inadmissible in evidence. In my opinion this view can no longer be maintained having regard to the recent decision of the Judicial Committee. As I read the judgment of the learned Subordinate Judge he gives no other ground for coming to the conclusion that the disputed lands are not the proprietor''s private lands.

So far as the second point is concerned, it is worthy of note that the learned Subordinate Judge does not base his decision on a construction of the leases. I should have thought that there being written leases in this case he should have directed his mind to the question whether on the terms of the document the lease can be said to be a cultivating lease or not; but he gives two grounds for coming to the conclusion that the leases are cultivating leases. He says that "the kabuliyats Exs. 2 and 2(a) mention that the executants will not claim right of occupancy in the lands;" and in the view of the learned Subordinate Judge "this goes to show that the parties had in contemplation a raiyati settlement."

This may or may not be so, but, in my opinion, this is not a ground, by itself, Sufficient to enable the Court of facts to come to the conclusion that the lease is a cultivating lease.

The second ground which the learned Subordinate Judge assigns is "that in the patta of 1888, when the entire 60 bighas of the alleged kawat lands were settled, the settlement was taken for the purpose of cultivation."

Now, in this case we are not concerned with the patta of 1888. We are concerned with the patta of land and it is entirely irrelevant to consider what the settlement was under the patta of 1888. The learned Subordinate Judge gives another reason and it is that the presumption of law is in favour of the detendants first party as the area held by them does not exceed more than 100 standard bighas. But I can find nothing in law to justify the view that there is a presumption in favour of the land being raiyati land, because the area held by the tenant is lees than 100 bighas. There would undoubtedly be a presumption in favour of the interest of the tenant being that of a tenure-holder if the land exceeds 100 standard bighas; but there is no other presumption so far as I can see on the terms of the Bengal Tenancy Act. In my opinion each and every ground given by the learned Subordinate Judge on this part of the case is, in point of law, erroneous.

I would, therefore, allow this appeal, set aside the judgments of the Courts below and remand this case to the Court below for disposal according to law.

Mr. A.B. Mukharji appearing for the respondents has a cross-objection and he Bays that this case was not properly considered. We allow the cross objection and direct that the whole matter be dealt with afresh by the learned Subordinate Judge.

The appellants are entitled to their costs in this Court. The costs incurred in the Court below will abide the result.

Kulwant Sahay, J.

I agree.