AI Structured Summary
Not yet generated for this judgment
Judgment
Chatterjee, J.—This is a Second Misc. Appeal against an order of remand passed by the District Judge, Purulia, reversing the judgment of the trial Court. The Plaintiff is the Appellant. The Plaintiff instituted the suit for ejectment on the ground that the Defendant, who holds certain lands on condition of performing certain services to the Plaintiff deity, failed to perform his duties and therefore, the Plaintiff was entitled to recover possession from the Defendant.
The Defendant claimed to be a tenant and further claimed to have Occupancy right and in lieu of rent he had to perform services. The trial Court found that the Defendant had no occupancy right and further found that the Defendant was to serve the Plaintiff in certain capacities and in lieu of services he was remunerated by the produces of the land and that the Defendant had no interest in the land. The suit was, therefore, decreed by the trial Court.
The appeal Court found that the Defendant had an interest in the land and the Defendant was a tenant; but the Defendant was not an occupancy raiyat. The appeal Court further found that in law no notice in terms of Section 111(g) of the Transfer of Property Act forfeiting the tenancy was necessary; but still he directed an issue to be raised because the pleading involved it. Therefore, he set aside the judgment of the trial Court and sent the matter back on remand. Against that order the present appeal has been filed.
The first question for determination is whether the Defendant is a tenant or merely holds lands for the purpose of remunerating himself for the services that he is to render to the Plaintiff. The Defendant has been recorded as a tenant. u/s 84(3) of the Chota Nagpur Tenancy Act, 1908, there is a presumption of its correctness until the contrary is proved. There is no evidence to prove the contrary and the appeal Court rightly came to the finding that the Defendant was a tenant.
The next question is, has the Defendant acquired any occupancy right in the property? u/s 19 of the Chota Nagpur Tenancy Act, 1908, every person who is a settled raiyat of a village within the meaning of Section 17, has a right of occupancy in all lands for the time being held by him as a raiyat in that village. Therefore, if there was nothing else, we would have to consider whether he was a settled raiyat within the meaning of Section 17 of the Chota Nagpur Tenancy Act. But Section 77 of the said Act provides as follows:
Except in so Ear as the State Government may otherwise direct by notification, nothing in this Act shall affect any incident of a ghatwali or other service tenure or holding.
Therefore, because of operation of Section 77, the service holding in question will not be governed by Section 17 or Section 19 unless there is a notification. But no notification has been pointed out. Therefore, the incident of the service tenure will not be affected by Section 17 or 19 and therefore, the tenant Defendant will not acquire an occupancy right. I, therefore, agree with the appeal Court that the Defendant is a tenant and I further agree with the Courts below that the Defendant had no occupancy right.
The next question is whether the Plaintiff had a right to eject the Defendant. We have already found that the Plaintiff is hot an occupancy raiyat, but that he is a tenant of agricultural land and therefore, the rights and incidents of such raiyat may be those of a non-occupancy raiyat and such non-occupancy raiyat may be ejected as u/s 41(c) which shows that such a tenant may be ejected if he has broken a condition, consistent with this Act, on breach of which he is, under the terms of a contract, liable to be ejected. But Section 41 may not apply because of Section 77, if Section 41 is inconsistent with the incidence of the service holding, we have already found that the tenant was liable to render service and he did not render service. Therefore, he has broken the condition of the tenancy and therefore, he would be liable to be ejected under the implied condition of the tenancy and this implied condition is not inconsistent with the provision of Section 41, Sub-section (c) of the said Act. Therefore, in terms of Section 77 read with Section 41, the Defendant is liable to be ejected. I, therefore, agree with the appeal Court that the Defendant is liable to be evicted.
The next question is, as this relates to forfeiture, whether Section 111(g) of the Transfer of Property Act will apply or not. Section 111(g) requires that in case of forfeiture, a notice in writing is to be given. If Section 111 had governed the incident of the service holding in question, a notice would have been necessary. But Section 117 of the Transfer of Property Act provides that none of the provisions of chap. V would apply to leases for agricultural purpose except when the local Government publishes certain notification. But there is no notification. Therefore, Section 111(g) would not apply and therefore, there is no question of serving a notice. On the-other hand, Section 41 of the Chota Nagpur Tenancy Act requires no such notice. Further, there is no evidence to show that there was an agreement between the parties that the landlord would not be entitled to evict unless he gives a notice. Therefore, in my opinion, no notice u/s 111(g) or otherwise is necessary.
The result is, the Plaintiff is entitled to a decree for ejectment and the suit must be decreed, the appeal allowed, the judgment and decree of the appeal Court is set aside and those of the trial Court restored. There will be no order for costs so far as this Court is concerned.
No orders need be passed in the alternative petition u/s 115 of the Code.