Shaikh Khairullah vs Behari Hajjam

Jwala Prasad, J.—This second appeal is by the plaintiff and it arises out of a suit for ejectment with a claim for mesne profits.

The land in question consists of 13 acres of land with trees standing thereon in Mauza Barhat bearing survey plot No. 689 which was recorded in the survey khatidn as part of the plaintiffs raiyati holding of 8 acres and odd under khata No. 97, with a note that it was in possession of Khakhu Hajjam, father of the defendant. The plaintiff''s case is that this Khakhu Hajjam was his ploughman and he allowed him to occupy his plaintiff''s house standing on the said plot and to cultivate the remaining portion of the land on payment of batai rent on condition that he would remain in possession only so long as he worked as a ploughman of the plaintiff. The plaintiff says that Khakhu Hajjam died in 1329 Fasli (1922) and since then the defendant is in possession of the land although he was asked to vacate it. The defendant denies that the house was constructed by the plaintiff or that he or his father ever acted as a ploughman of the plaintiff, or that they ever divided the produce of the land and the trees with the plaintiff. He states that the plot in question was gairmajrua of Raj Benailli wherein his ancestors constructed the house and held possession of the remaining portion of the land by growing creepers and planted trees and that during the survey operations the entries were made while he was a minor and his father was absent from the village. It is also alleged that the suit is not maintainable without a notice under s 49 of the Bengal Tenancy Act.

Both the Courts below have concurrently held that the land in suit is a part of the plaintiff''s raiyati holding and the defendant''s father was an under-raiyat under the plaintiff and built the house and planted trees on the land. The Munsif dismissed the suit upon the ground that the defendant could not be ejected without notice u/s 49 of the Bengal Tenancy Act. The lower Appellate Court disagreed with the Munsif upon this point and held that no notice u/s 49 was necessary; but the learned Subordinate Judge held that the defendant''s father was a settled raiyat of the village where the land in suit lies and held kasht lands (vide Exs. A and A-l) and his son the defendant in the present case, holds that land as a raiyat. u/s 182 of the Bengal Tenancy Act, the provisions of the Bengal Tenancy Act applicable to this land held by the defendant and his father, would regulate the incidents of the tenancy of the homestead land in question, that is, the provisions of the Bengal Tenancy Act applicable to a land held by a raiyat and not under raiyat will apply to the homestead land in question. The defendant cannot, therefore, be ejected by the plaintiff. Upon these grounds the lower Appellate Court agreed with the result arrived at by the Munsif and dismissed the appeal. The plaintiff has, therefore, come up to this Court in second appeal.

The learned Advocate on behalf of the appellant contends that the defendant''s father was an under-raiyat and his right in the land in question was not heritable and, therefore, after his death his son did not inherit it and his possession of the land was that of a trespasser. In the present case of Akhil Chandra Biswas v. Husain Ali 20 Ind. Cas. 698 : 19 C.W.N. 246 : 18 C.L.J. 262 it was held that under certain circumstances an under-raiyat may acquire the right of an occupancy raiyat but that the interest of an under-raiyat is not ipso facto transferable. That was a case of a plaintiff who was an occupancy raiyat and purchased the superior tenure and u/s 22 (2) the property vested in him but the occupancy right which he had in the land ceased to exist and after the plaintiff purchased the superior tenure his under raiyat transferred his interest in the land to another and it was held that the transferee of the under-raiyat did not acquire any right under the transfer and the plaintiff was entitled to eject him. In Krishna Kanta Ghose v. Jadu Kasya 28 Ind. Cas. 839 : 21 C.L.J. 475 : 19 C.W.N. 914 it was held that the provisions of the Bengal Tenancy Act are applicable to the homestead of a person who holds other lands as a raiyat not under the landlord of his homestead but under a different landlord, and in a village different from that in which his homestead is situate. The provisions of the Act applicable to a raiyat will, therefore, u/s 182 of the Act regulate the incidents of the tenancy of the homestead, though the tenant has only the interest of an under-raiyat with respect to it; and the latter cannot be ejected from his homestead u/s 49, Clause (b) of the Bengal Tenancy Act. In the case of Nadiram v. Srinath Chakrabarti 54 Ind. Cas. 906 : 24 C.W.N. 93 following the Full Bench case in Arip Mandal v. Ram Ratan Mandal 31 C. 757 : 8 C.W.N. 479 it was held that the heir of an under-raiyat has no heritable right to continue as such. Similar was the view taken in Jnanendra Nath Mustaphi v. Dukhiram Santra 82 Ind. Cas. 386 : 28 C.W.N. 865 : 40 C.L.J. 90 : A.I.R 1924 Cal. 850 in which it was held that the right of an under-raiyat is not transferable, inasmuch as it is not heritable, whereas one of the incidents of a transferable interest is that it must be heritable. In the case of Ganga Singh v. Chairman District Board, Patna 50 Ind. Cas. 8 : (1919) Pat. 235 it was held that if a settled raiyat of land in a village acquires other land as a raiyat, apart from the lands of which he is a settled raiyat, for the purpose of creating a homestead thereon, he acquires occupancy rights in such lands even though the land so acquired for the purpose of the homestead be not held under the same landlord as the lands in respect of which such tenant is a settled raiyat In the case of Prasanna Kumar Datta Vs. Kedarnath Samanta, a single Judge of the Calcutta High Court held that although with regard to the homestead land the lessor is a raiyat the lessee, if he holds other lands as a settled raiyat in the village will hold such homestead land as a raiyat and would, therefore, be protected from ejectment. In that case the plaintiff was held to be an occupancy tenant and the defendant as an under-tenant and in the suit by the plaintiff to eject the defendant it was held that inasmuch as the defendant was a settled raiyat in the village he held the homestead land as a raiyat, although the plaintiff lessor had an occupancy right in the land and had settled the land with the defendant as an under-raiyat. Upon this ground it was held that the plaintiff was not entitled to eject the defendant Similar was the view taken by a Division Bench of the same Court in Nitai Pada Das v. Sarat Kumari Vasi 91 Ind. Cas. 183 where it was said that u/s 182 of the Bengal Tenancy Act a raiyat holding homestead as an under raiyat, would be governed by the same provisions as regards ejectment from the homestead as regulate his raiyati.

Upon these authorities it is clear that the defendant''s father, who according to the finding of the Court below was a settled raiyat of the village, and an under raiyat with respect to the homestead land in question could not be ejected from the latter because the incidents thereof will be govern ed by the provisions of the Bengal Tenancy Act applicable to raiyats, The learned Advocate on behalf of the appellant draws my attention to case decided by a Division Bench of this Court to which I was a party, namely, Bishnath Singh v. Bibi Ayesha 120 Ind. Cas. 477 : Ind. Rul. (1930) Pat. 45 : 11 P.L.T. 107 in which it was hold that Section 182 would not apply where the raiyati holding was already sold for arrears of rent and the tenant ceased to have a right of occupancy in respect thereof. This is not applicable to the facts of the present case where the defendant''s father and the defendant continued, according to the finding of the Court below, to be settled raiyati of the village and to hold the raiyati lands in it. The learned Advocate on behalf of the appellant contends that this may be so long as the father was alive, but after his death it would not apply to the case of his son who did not inherit the under raiyati right under the rulings referred to above. According to Section 182 as interpreted by the authorities cited above, the defendant''s father became a raiyat in respect of the homestead land and as such it was heritable and his son, the defendant, inherited it although ordinarily he would not have done so if he were simply an under-raiyat of the homestead land without having any raiyati interest in the village.

It is then contended that the finding of the Court below that the defendant''s father and thereafter the defendant is a settled raiyat of the village is without evidence. The Courts below have referred to the entries in the survey Record of Rights in support of their finding that the defendant and his father are the settled raiyats of the village; vide Exs. A and A 1.

The result is that the appeal is dismissed with costs.