Shrikishun Lal vs Harihar Sah and Another

Meredith, J.—This is a plaintiff a second appeal against a decision in first appeal affirming the Munsif''s judgment dismissing the suit, which was to recover possession of holding No. 231 within the municipal area of Muzaffarpur town, which was also a portion of Survey plot 312 of khata 106 of mahal Ganipur. It was so recorded in the record of rights as part of the raiyati holding of one Umesh Chandra Rai, the survey having taken place before the area was included within the, municipality. Umesh Chandra Rai gifted the land to his daughter''s son Rakhal Das, and, on 24th November 1934, Rakhal Das sold it to the plaintiff.

One Mt. Akli had taken settlement of the plot in suit from Umesh Chandra Rai, and it has been found that this lease was taken for building purposes. On 19th March 1942, Akli sold her interest to defendant 1. It has been found that, if Akli was an under-raiyat, she had acquired occupancy status. She was impleaded as a defendant, but did not contest the suit, this being done only by defendant 1, and it is stated, and not contradicted, that Akli has since died, leaving no heir.

The plaintiff''s case was that Akli, being an under-raiyat, had no power to transfer her interest, and so defendant 1 acquired no interest in the land and was liable to be ejected.

The defence was that as the lease was for building, and not agricultural purposes, it was governed by the Transfer of Property Act, and not the Tenancy Act, and it was also governed by the Transfer of Property Act, and not the Tenancy Act, because the land lay within the municipal area. The settlement with Akli was permanent, and she had a transferable interest.

The Court below has adopted the view that the Transfer of Property Act is applicable. It is contended before us that this is wrong, but that, whichever Act applies, the suit should succeed.

With regard to the question whether the Transfer of Property Act applies as the land lies within the municipal area we have to construe Section 1(3), Bihar Tenancy Act. This Sub-section was amended in 1934, and, as it now stands, reads as follows:

It shall extend to the districts of Patna, Gaya, Shahabad, Muzaffarpur, Saran, Champaran, Darbhanga, Bhagalpur, Monghyr and Purnea, except any area constituted, or deemed to have been constituted, a municipality, under the provisions of the Bihar and Orissa Municipal Act, 1922, or part thereof, if such area is specified in a notification issued in this behalf by the Local Government.

The wording of the original Sub-section was somewhat different, but I do not think there is any significant difference as regards the particular point under consideration.

The question is what is meant by "if such area is specified in a notification issued in this behalf by the local Government". Does "in this behalf" refer to the constitution of the municipality, or the exception of any area or part thereof? Upon this question there seems to be no authoritative decision in this Court. In Mt. Wajihunnissa Begum v. Fakira Mahton AIR 1923 Pat. 94 , which has been cited before us, the point does not seem to have been raised or, at least, pressed. In Phulchand Vs. Mrs. Natee Mirza and Another, , Manoher Lall J. adopted the view that the reference was to the notification constituting the municipal area, and so all municipal areas would be excluded from the Tenancy Act. In Kali Sahu v. Girdhari Mistri AIR 1919 Pat. 68, however, Das J. took just the opposite view, holding that the notification referred to in Section 1(3) is a notification specifically excluding a particular municipal area, and that, therefore, the Tenancy Act applies to municipal areas in the absence of a notification excluding the particular area. In neither of these cases is there any discussion of the alternative interpretations. In second Appeal No. 1181 of 1944, Ram Sagar Singh and Anr. v. Mahabir Thakur and Ors. decided on 25th November 1946, Ray J. also held that the Tenancy Act applies to municipal areas unless there is a special notification excluding the area.

All three decisions are by learned Judges sitting singly. I find myself in agreement with Das and Ray, JJ. Every area constituting a municipality must be so constituted by notification. There must be such a notification in the case of every municipal area. If the words "if such area is specified in a notification issued in this behalf by the Local Government" refer to the notification constituting the municipality, they would be entirely redundant. They must, I think, refer to some other notification and, in the circumstances can refer only to a notification creating the exception. I find that this view also has been adopted by the commentators in B.K. Sen''s edition of Bihar Tenancy Act and H.C. Sen''s edition of the Bengal Tenancy Act.

It is not contended in the present case that there was any notification specially excluding the area from the operation of the Tenancy Act, and I would, therefore, hold that the Tenancy Act is applicable, despite the area being situated within the Muzaffarpur municipality.

The next question is whether the fact that the sub-lease was for building purposes, and not for agricultural purposes, makes the Tenancy Act inapplicable. In this connection reliance has been placed upon Jado Singh and Another Vs. Bishunath Lal Kanedia Marwari and Another, . This is a decision of a Division Bench and so binding upon us. What was held was that, if the head-lease is governed by the Tenancy Act so must the sub-lease, irrespective of its purpose. The original raiyat here, Umesh Chandra Rai, bad an agricultural holding and was recorded as a, raiyat in the record of rights. His lease was certainly governed by the Tenancy Act. Upon this decision, therefore, the sub-lease, leven for building purposes, to the under-raiyat, will also be governed by the Tenancy Act.

The matter may be looked at from another aspect. In Section 5, Tenancy Act "raiyat" is defined as 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; that is to say, a raiyat must be a person who holds his land for agricultural purposes. "Under-raiyat" is defined in Section 4(3) as a tenant holding, whether immediately or mediately, under a raiyat. There is nothing to show he mast be a person also holding for agricultural purposes. By definition, ever one holding under a raiyat, for whatever purpose, will be an under-raiyat, and so governed by the Act. This was the basis of two Calcutta decisions, Babu Ram Ray v. Mahendra Nath Samanta 8 C.W.N. 454 and Abdul Karim Patwari v. Abdul Rehaman 15 Cri.L.J. 672 where the same view was adopted as in Jado Singh and Another Vs. Bishunath Lal Kanedia Marwari and Another, .

It follows that the applicability of the Bihar Tenancy Act is not excluded upon either of the grounds put forward, and the Court below is wrong in holding to the contrary.

Once it is held that the Tenancy Act is applicable, the next question which arises is whether Akli, the under-raiyat having an occupancy right, could transfer it to the defendant 1. Upon this point, there is a decision of Rowland J., Abbas Khan and Another Vs. Sk. Mohammad Hussain and Another, and though that learned Judge was sitting singly, I find myself in complete agreement with his reasoning. There is no provision in the Tenancy Act under which an under-raiyat can transfer his interest unless Section 26A is applicable. Section 26A makes an occupancy holding transfer, able. Does it apply to an under-raiyat?--only if an under-raiyat, having an occupancy status, has an occupancy holding within the meaning of the Act. "Holding" is defined in Section 3(9) as a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. Under this definition, only a raiyat can have an occupancy holding, and "raiyat" does not, and cannot, include "under-raiyat," as is clear from Section 5(3), which says:

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.

It must be held that the Act does not give an under-raiyat the right to transfer his interest even if he has an occupancy status. It was, however, contended by the defendant that, if Akli should be regarded as an under-raiyat, there was a custom of transferability by under-raiyats in the locality, and he offered evidence of such custom. The trial Court held the custom established upon the evidence. The lower appellate Court did not go into this question on the ground that the Tenancy Act was not applicable. The appellant, therefore, asks us to remand this case for a finding upon this point, if it be held, as we have held, that the case is governed by the Tenancy Act.

It was alternatively argued for the appellant that if the Transfer of Property Act is applicable the plaintiff has also a good case, because u/s 107 of that Act the lease in question could only have been made by a registered instrument. But Akli''s lease was oral. She therefore, acquired no permanent leasehold interest which she could transfer to defendant 1, It is unnecessary to deal with this argument or express any opinion as we have adopted the view that the Tenancy Act applies.

For the respondent it is conceded that, if the Tenancy Act is applicable he has no defence except that based upon the alleged custom of transferability and a remand is necessary. After hearing the argument for the appellant he abandoned the case that the Transfer of Property Act was applicable.

In the result, I would remand this case to the lower appellate Court for a decision upon the point as to whether any custom of transferability by under-raiyats had been established. If he holds that the custom has been established, then the suit should be dismissed. But if he finds there is no such custom he should decree the suit. Costs all through should abide the final result and be disposed of by him.

Agarwala C.J.

I agree.